Decolonising Justice in India: A Solidarity-Based Approach to Post-Colonial Justice

The Panchayats in India do not function through an adversarial approach but rather through a conciliatory approach to achieve relational justice rather than punishment. The source of this approach lies in Gandhi’s conception of a solidarity-based society rooted in mutual trust and respect for everyone. The Panchayats suffered a catastrophic event with the colonization of India which almost led to its extinction until it was mimetically revived after independence. However, during this time the colonial juridical field had become entrenched within the Indian society. The people in India were simply unable to adapt their practice and habitus when dealing with this new concept of law and the agents within the field simply could not comprehend the rules of the game itself. The character of the symbolic capitals within the field changed and in the absence of any clear rules of the game structural corruption was introduced into the field.

    “That action alone is Just which does not harm either party to a dispute”

                     ~ Gandhi M K quoted in Erikson (1993; 303)

Introduction

Post¹¹ 1 ‘Post’ here does not refer to the time after the end of colonization. In fact, as far as post-colonial theory goes, colonization never ends only the physical occupation of the colonized colonies ended. The prefix ‘post’ in this case is the same as the prefix post in postmodern, it is critical analysis of the modern discourses on colonialism, discourses that construct power relations that continue to dominate the colonized world to this day. -colonialism is rooted in conflict and violence. Fanon (2007) discusses psycho-affective violence, Said (2014) discusses the violence of essentialization and for Spivak (2003) it is epistemic violence. Post-colonialism starts with the violence of the colonizer and end with the reactionary violence of the colonized native. Only Gandhi (1921) makes a case for a non-violent post-colonial approach and succeeds, although his contribution to the field is rarely recognized. Gandhi was deeply critical of modernity and ideas such as individualism and materialism that it brought to the fore. According to him modern society was riddled with conflict which was the reason for all violent struggles in modern society. The world wars, the Bolshevik revolution; all were a direct consequence of modern ideas that destroyed solidarity in the society (Kripalani, 1991). The epistemic conflicts created by modern civilization resulted in breaking up of social bonds that were the basis of love and respect that kept society together.

Colonialism in India created deep ruptures in pre-colonial society. Along with other modern techniques, the colonial government implemented systematic documentation of the Indian condition. This has created fractures in the Indian society on an unprecedented scale. For example, the documentation of caste identities meant that social mobility within castes came to an absolute standstill. The social structure that rested on the foundations of a solidarity-based division of labour (caste) crumbled (Barnes, 1966). Solidarity based on mutual love and respect in society was replaced by a perpetual condition of conflict. Unjust practices in the Indian society were accentuated because of social strife or conflict. This became the source of all types of injustices in society. It can be easily argued that pre-colonial Indian society was not just by any contemporary standards, and that would be a very accurate argument; however, it has been empirically shown by multiple scholars that colonial injustices perpetuated upon the Indians had far-reaching consequences even in contemporary Indian society (Bhabha, 2012; Guha, 1982; Spivak, 2003).

The colonial system of justice (or the common law legal system) starts with the recognition of a state of conflict and addresses this conflict in favour of one of the parties to the conflict (Rawls, 2020). This justice is based on abstract notions of equity, individual freedoms, rights and duties, laws, customs, and norms among many others (Kelsen, 1947; Austin, 1880). The source of this kind of justice resides in the Constitution of India, the preamble to which, guarantees Justice to all its citizens, specifically three forms of justice: economic, political, and social. However, this form of justice is not guaranteed structurally; the fundamental right to judicial remedy under Article 32 of the Constitution only extends to remedies against infringements of fundamental rights by the state (Basu, 1984). Even in these cases of violations of fundamental rights, justice enshrined in the constitution is inaccessible for various reasons. The structure of judicial administration in India is top down and highly centralized creating ample spaces for corruption and denial of justice especially at the bottom where there is little or no autonomy (Moog, 1992).

However, as Luhmann (1988) succinctly explained, justice is not the logic that determines the operation of any legal system. This raises the question; What is this relationship between law and justice? Is it the law of nature (Kelsen, 1947) or is it positive law enacted by the sovereign (Austin, 1880)? In either case, who decides whether the law is just or not? The people, the majority of the people or metaphysical entities like God or King or Reason? If rule of law exists, should it be subservient to the will of the people even if it is unethical or irrational (Benhabib, 1994; Honig, 2007; Scalia, 1989)?

If justice is a guarantee that the state ensures to its people then it can only be in the form of an exercise of power. Only humans have evolved this intellect to create complex power structures capable of exercising power over large groups. Families gave way to tribes, which gave way to kingdoms, which gave way to empires and feudatories, which finally gave way to the modern state that exists today (Jones & Sergot, 1996). However, the exercise of power is only one aspect of the framework of these institutions; they also legitimise these exercises of power. The post-colonial question here is; is the Indian state really indigenous? Would India be a state without colonization?

For the Judiciary in India, the way it legitimizes its power is through fiction of rule of law. However, rule of law is not a simple enough concept to understand let alone form the normative basis for the legitimacy of judicial authority. In Britain, it is the common law remedies in the form of writs that create constraints on the unfettered exercise of power by the state; in the USA, on the other hand it is the separation of power enshrined in the constitution (Pfander, 2019). From Dicey (2007) to Dworkin (1970), anyone who has written anything on rule of law has been very much aware of its paradoxical character and the moral and ethical problems that it not only introduces into law and jurisprudence but also prevents it from normatively legitimizing any exercise of power (Allan, 1988).

As Leach (2005) distils the Iron law into three basic claims; “bureaucracy happens”, “if bureaucracy happens, power rises” and “if power rises, power corrupts” it becomes clear that it is normatively impossible for any legal institution not to exist as anything but a power institution which continuously works to enhance its own powers. Every institution is corrupted by this lust for power, and corruption in turn ensures that the exercise of power by these institutions is irresponsible or unjust (Foucault, 2012).

Problems of Modern Epistemology

India’s judiciary is a power institution, but it is not an Indian judiciary, it is a Euro-centric, colonial judiciary. This Euro-centricity rooted in modern epistemology makes it a power institution. In Weber’s (1978) conceptualization of society and its historical development, the basis of social relationships is legitimizing orders, which give rise to figures of authority. Humans tend to necessarily anoint at a figure of authority who or which can be the final word in the settlement of disputes and disagreements. Whether it is the shaman, chief, king, priest, president, mayor or sarpanch²² 2  https://www.collinsdictionary.com/dictionary/english/sarpanch (the head of a Panchayat) Accessed on 07.12.2020. (in case of India), human civilizations are built on these figures of authority, which prevent anarchy. However, this whole proposition rests on the indoctrinated idea that humans cannot be trusted to act responsibly towards each other (Gambetta, 2000). How can these figures of authority be trusted to act responsibly towards other humans? The only logical solution to this paradox is that this figure of authority should be something other than human. Ostrom (1990) proved this proposition wrong through her seminal work on the commons; however, throughout modern times in Europe, this proposition has been the most accepted one leading most democracies in the world to opt for a written constitution. Gandhi (1921) predicts the later empirical findings of Elinor Ostrom, and suggests Sarvodaya (Universal Empowerment), where instead of the individual freedoms and rights that modern civilization guarantees, the society’s structure is determined by mutual and equal respect for fellow humans and a sense of duty towards each other. This kind of social solidarity, based on pure ethics and morality, ensures justice in the Indian society through the institution of Panchayats (Gandhi, 1959).

As discussed above this written constitution of India establishes a framework for the rule of law but at the same time it also establishes the state and the state is a bigger epistemological problem. Indians had no conception of state or nation before the colonialists arrived, and because it did not exist does it mean that there was an absence of law and order in pre-colonial India? Dispensing justice in India may never have been the king’s prerogative as in Europe, but it was not a lawless society. Nyay Panchayats of 16^th and 17^th century India may have dispensed the kind of justice that by today’s standards may have sounded exploitative and unjust (Meschievitz & Galanter, 1982), but is it surprising that even the courts in Europe were dispensing worse injustices on their people even during the 18^th and 19^th centuries³³ 3 It is important to point out that in most of Europe; these injustices had the legal sanction of the state. As Luhmann, rightly points out, legal systems do not concern themselves with justice, their only concern is legality, and these injustices were perpetuated through statute and precedents. There was a total absence of ethics and morality within the system, which is essential to understand justice itself. On the other hand, these questions of ethics and morality were at the very centre of Gandhian Social Construct, and his description of the system of Panchayats. (Ratanlal & Dhirajlal, 2006). Modern Euro-centric courts in Iran, Saudi Arabia, China, North Korea and the authoritarian regimes of Eastern Europe, Middle East and Central Asia, Africa and South America dispense injustices upon their people in the same way Khap Panchayats do in North Western India (Bharadwaj, 2012; Pal, 1999). Furthermore, simply because there was a 200-year colonial break into the evolution of Panchayats, who is to say that if they had continued on their paths without the break, they would not be offering a better system of justice than the current euro-centric model.

Gandhi (1959) favoured the decentralization of statist power and advocated a democratic model based on village republics. He says; “Panchayat… represents the system, by which the innumerable village republics of India were governed. But the British Government, by its ruthlessly thorough method of revenue collection, almost destroyed these ancient republics, which could not stand the shock of this revenue collection”. At the same time, he was aware of the evils that existed in the system; “It was reported to me… even criminal cases like rape were tried by the so-called Panchayats. I heard of some fantastic judgments pronounced by ignorant or interested Panchayats. This is all bad if it is true. Irregular Panchayats are bound to fall to pieces under their own unsupportable weight”. If the people of India were intelligent enough, to fight off the colonial powers who is to say that they would not have fought off an exploitative Panchayat?

As John Rawls describes Justice it is based on fairness, the starting point of which is the disinterest of human participants (Barber, 1975). Suffice it to say that in the colonial (modern Euro-centric) conception of justice, this state of disinterest is never realized, and the adversarial process, which is supposed to guarantee justice, begins at a biased point. Without going into the epistemological defects of the conception of modern justice itself, which has been a big topic among scientists including Foucault in his 1971 debate with Chomsky (Foucault & Chomsky, 2011) it would be pertinent to mention the Gandhian critique of the adversarial process. Gandhian criticism is deeply based on the Indian philosophy of non-violence and the adversarial process cannot work without a winner and loser, therefore this process itself creates a cycle of violence. As a corollary to this, there cannot be any justice, where there is violence; there can only be punishment.

As opposed to the modern colonial conception of justice, the Gandhian conception of justice did not start with the disinterestedness of human participants and was not based on fairness or equity. Instead, it started with the limits of human capacity, both mental and spiritual, and justice was based on the achievement of relational truth⁴⁴ 4 Because of the limits of mental faculties every human being starts off with their own understanding of what truth is, however none of these positions are absolute in any way. The conciliatory process which in the Habermasian sense is a series of undistorted communicative actions dilutes and resolves these differing positions on individual truths and the resultant is what Gandhi calls relational truth which is acceptable to all. In this process everyone is satisfied as no one is a winner and no one is a loser and thereby it ends the cycle of violence. through a solidarity-based conciliatory process. The conciliatory process that Gandhi alluded to in this sense was Panchayats. As pointed out earlier, Gandhi was aware of the limits of the institutions of Panchayats⁵⁵ 5 Pre-Colonial Panchayats were a sub-system of the overall social system; however, they were not legal systems. They did not work on the dialogic of legality and illegality and their self-reference did not lead to creation of law as in the case of legal systems. Panchayats operated autopoietically through decisions and the dialogic of these operations was right vs. wrong. The political system, legal system, economic system or the bureaucratic systems in India did not operate separately as in modern Europe all of these were a part of the system of panchayats. And therefore, ethics and morality did not get introduced into the system from its environment through irritations that gave rise to the idea of justice, instead the idea of justice was built into the operational closure of the Panchayats. and their capacity to arrive at a relational truth that would ensure justice, however, according to him, this process was far better than the adversarial process that created a cycle of violence (Gandhi, 1959).

Colonial Feudalism and Euro-Centric Courts

In 1793, when the British East India Company introduced “Permanent Settlement” of land in Bengal to smoothen its revenue collection procedures, it ushered in a systematic Euro-centric feudalization of the Indian Society. At the same time, it paved the way for the de-feudalization of England by ushering in the Industrial Revolution which was premised on the deindustrialization of India (Guha, 1982). Pre-industrial European society can be simplified based on an agrarian class-based feudal setup, that consisted of primarily two classes, land-owning nobility and landless peasants (Brenner, 1976). On the other hand, pre-colonial India was a much more complex society, a proto-industrial/proto-capitalist society based on a caste-based division of labour (Perlin, 1983). There seems to be a clear bias among Western scholars, especially when it comes to accepting that the Industrial Revolution in Britain was premised on the deindustrialization of India; however, there is very clear empirical evidence⁶⁶ 6 It is beyond the scope of this essay to provide this empirical evidence here, but if the reader wishes to look at it, they should refer to Perlin’s 1983 essay on “Proto-industrialisation and pre-colonial south Asia”. that even if pre-colonial India was not proto-industrialized, the economy was most definitely proto-capitalist in character (Perlin, 1983). The Inclosure Act of 1773 in Great Britain was enacted to exploit the peasants and extinguish their rights associated with the land. In the feudal society of Europe under conditions of free market this led to the division of labour and paved the way for the capitalist mode of production and the Industrial Revolution⁷⁷ 7 It is important to point out that the pre-industrial feudal society of Europe was also primarily binary in character divided into two major classes that of the nobility and the peasants and the Industrial society as described by Marx in Europe remained a primarily binary society based on the two classes of the Bourgeois and the Proletariat. Although over-simplified this is relevant in understanding why the same policy led to the deindustrialisation of India. .

Why a similar act of the East India Company in India (Permanent Settlement in 1793) resulted in a diagonally opposite consequence requires a more critical analysis. As Guha (1982) points out ownership of land in India became the reason for the production and reproduction of ‘pre-capitalist elements’ in colonial society. For a multi-cultural society that had no conception of ownership, permanent settlement created ruptures and chaos restricting access to numerous symbolic capitals in almost every social field in India. In pre-colonial Indian society, the struggle for dominance within any social field was multidimensional owing to the multi-layered complex differentiation of the Indian society based on a diffracted caste-based division of labour (Barnes, 1966; Shusterman, 1999). With the implementation of Permanent Settlement this multidimensionality of struggle within social fields transformed unidirectionally. Since this change was so abrupt that there was no chance for the agents within the field to adapt their practice or habitus, they were simply caught off guard as they did not know the rules of the new game. Unlike in Britain, where the rules of the game were determined by free market mechanisms, in India the dice was loaded by the Colonialists in their favour. If we take a cursory look at the books of the East India Company from 1710 to 1760, we can notice a clear shift in the nature of trade. Until the 1750s almost 70% of exports to India was in the form of gold; however, after the conquest of Bengal in 1757, export items abruptly changed, and only about 10% of the exports to India consisted of gold in the 1760s (Roy, 1987).

The structure of the pre-colonial juridical field in India was substantially different from the common-law and continental fields. The dominant position in this field was occupied by the Brahmin who by caste were the keepers and interpreters of the scriptures (specifically the smritis) which dealt with the consequences of the deviances from the existing Brahmanical Social Order (Chakravarti, 1993; Shusterman, 1999). This pre-colonial legal system was not based on the dialogic of legality and illegality (Luhmann, 1988), but rather on the acceptability or unacceptability of the conciliation process. Panchayats gave this practice a spatial and temporal boundary and the communicative process of conciliation continued to autopoietically sustain the system of Panchayats (Luhmann, 2008).

On the other hand, the colonial legal system was the result of a catastrophic event, which resulted in the near extinction of the pre-colonial Panchayat system and its replacement with a modern legal system. This modern legal system worked autopoietically by self-referencing itself (creating law) on the dialogic of legality and illegality of each communicative operation. Every operation that occurs in the system also self-references itself and the system works only to ensure that the operation is legal. What is legal and what is illegal are also determined by the perpetual operation of the system itself. Each operation also closes the system operationally, which means that with each operation, it distinguishes itself from its environment. However, as a sub-system of the social system the overall social system and its other sub-systems form the environment of the legal system. Every operation of the other sub-systems of the social system acts as an irritation for the legal system and gives rise to another binary logic that of justice and injustice. What is legal may not necessarily be just as well; however, operational closure also means that the system is heavily dependent on its environment and therefore autopoietic systems are evolutionary in nature (Luhmann, 1988). The concept of justice itself is abstract and may have cultural implications. As Luhmann (1988) rightly points out that “a look at the legal cultures of the Far East also shows that recourse to the law can be interpreted as an intention to engage in conflict, and consequently it is institutionally discouraged”.

Three inferences can be drawn from the preceding paragraphs: 1) legal systems are evolutionary in character, 2) their evolution is dependent on their environment (culture-specific) and 3) at the very least, the pre-colonial Panchayat system in India avoided conflict and did not operate on the adversarial approach. We can argue that this was not a just system according to the modern Euro-centric definition of justice however, as a sub-system of the social system it had sustained itself for centuries before the colonial system of justice replaced it. Furthermore, even the Euro-centric colonial legal system at the beginning of the 18^th century when it was supplanted in India, did not adhere to any modern definition of justice (Burns, 2003).

Justice and Structural Corruption

It is not as if the colonial structure is purely evil, many of these structures not only have existed in India for generations now and the people have gotten used to them, but they have also been instrumental in reforming a number of social evils that had crept into the Indian Social Order before the arrival of the imperialist powers⁸⁸ 8 It wasn’t as if the colonizers were intent on civilizing India, if that was the case it wouldn’t have required Indian reformers, to petition the British to illegalize unjust social practices. (Ramusack, 1990). Decolonizing in this sense does not mean totally uprooting the colonial/modern system of judicial administration in India; however, it means reforming it by restituting the culture specific concepts of justice and institutional structures that the indigenous people are more comfortable with (Mignolo, 2009). From a structural point of view, there are two aspects of this decolonisation: first, it is the structure of the institutions of justice that need decolonization, and second, it is the epistemic understanding of justice and the process through which it is achieved that requires restructuring.

In Bourdieu’s description of the field, the struggle for dominance within various social fields determines the practice and habitus of social agents within the field (Shusterman, 1999). The structure of the juridical field determines the access that various agents within the field have to specific symbolic capital and the struggle for justice determines the structure of the juridical field (Bourdieu, 2004). In the same manner that a single agent cannot constitute a field, a single individual cannot create an institution. In other words, institutions are not the result of human evolution; however, they are a by-product of the collective evolution of human societies and therefore, their structures are specific to specific societies (Luhmann, 1988).

At the time of colonisation of India, the structure of the juridical field in England (or Europe in general) was not the same as the structure of the juridical field in pre-colonial India. The social forces acting in England that led to the development of common law courts were very different from those acting in Indian society, which led to the creation and subsequent evolution of Panchayats. The colonial legal system in India did not take the evolutionary path that it was on, in pre-colonial India. Its path was obstructed through colonialism and the subsequent evolution of the Indian legal system was the result of a catastrophic event that led to the mutation of the system itself; it is the environment of the system that determines the evolution of social systems (Luhmann, 1988).

The British colonialists supplanted the structure of common law courts into India and even almost 300 years after its introduction the people in India have not been able to get used to this structure; the agents in this supplanted juridical field are still learning the rules of the game. Their habitus is still adapting to the new field. Various kinds of symbolic capitals may be available to various agents within this field of struggle; however, in a situation where agents are unaware of the rules of the games, the only thing that takes prominence is access to material capital. Since access to material capital takes the most prominent position within the field, structural corruption is introduced. The juridical field, where access to justice (symbolic capital) should have been the determinant of the struggles within the field is now a playground where material capital determines these struggles (Bourdieu, 2004; Shusterman, 1999). It is not surprising that most Indians hold the opinion that the common law courts established by the British are not courts of justice but rather courts of injustice. Since money takes primacy over justice, it creates problems of accessibility, competency, and delays.

Unlike in the United States, Judges or other officials of the Indian Judiciary are not elected, but appointed; however, this does not preclude political influence in these appointments (Gautam, 2017). Even at the risk of being repetitive, the purpose of colonization was not benevolent civilization, it was exploitation of resources and when the common law juridical field was transplanted into the sub-continent, it created rules (Practice) that were designed to ensure exploitation through conflict creation. The Bar Council was created as a professional body, but it became political when its membership was restricted through the acceptance of existing members. The judges in India are selected from the Bar, and there is literally no separation between the Bar and the Bench, so when the Bar is political, it means that these political conflicts filter into the Bench with ease. If the appointments to Bench become political, the court’s judgements are delivered on political lines. If the top of the judiciary is political, and even if the lower judiciary selected through a competitive exam, the decision-making process remains politically motivated (Kumar, 2022). It is not just their appointments that are politically controlled; their transfers, pay, pension and prospects for future appointments are politically determined (Basu, 1984). The struggle for juridical capital that should determine the practice and habitus of agents within the colonized juridical field is replaced by a struggle for political capital determined more by usurpation and dispossession rather than representation (Wacquant, 2004). This is a cyclical problem, which means that the structure of the colonial juridical field that was supplanted by the British 300 years ago is no longer that of a juridical field. At the very least it has changed so substantially that the struggle for justice has been completely substituted by a struggle for other forms of symbolic capital; most prominently, material capital. In other words, money has substituted justice and we are back in the dark ages when Catholic priests in Europe were selling absolutions to those who could buy it (Weber & Kalberg, 2013) or as in England where you could only get the King’s justice if you could buy the King’s Writ (Ratanlal & Dhirajlal, 2006).

Structural Solidarity in Panchayats

From a Gandhian perspective, the success of Panchayats lie in its structural inclusiveness. Every member of the village takes part in the decision-making process and although this means that it is a power institution; the source of power is distributed over the entire population avoiding concentration of power and therefore corruption (Leach, 2005; Nadkarniet al., 2017). Inclusiveness also implies equal respect for all human beings, which is not the same as the equality of all human beings. As explained before Indian society is vastly diffracted on the basis of caste which means the existence of inherent inequalities; however, as Gandhi pointed out, there was no possibility of achieving absolute equality. The only achievable goal was equal respect for all, and the purpose of a Panchayat was to ensure this equal respect. In reality, the extent to which equal respect is achieved is a matter of debate and further empirical research. However, there is little doubt that the structure of the Panchayats sustains the possibility of such achievement (Dasgupta, 1996). The conciliatory process that Gandhi alludes to, as opposed to the adversarial process, provides an inbuilt mechanism for mutual respect and recognition among disputing parties (Gandhi, 1921). This is not different from what Axel Honneth later described as a solidarity-based struggle for recognition within social groups. It must be pointed out that the solidarity Honneth and other Western philosophers refer to is rooted in a struggle for recognition (Honneth, 1995). On the other hand, the social solidarity that Gandhi proposed and discovered (through his farms and ashrams (Rudolph & Rudolph, 2003)) in Panchayats, was rooted in mutual respect for all human beings. For Gandhi, this solidarity was intrinsically based on the spiritual dimension of human beings and was inherent in the ethics and morality that connected them to the cosmic spirit (Parekh, 2001). This post-colonial approach to solidarity within social institutions avoids the possibility of conflict. It recognizes disputes within social groups as an opportunity to express mutual love and respect among human actors.

Culturally Indians are more inclined towards a solidarity-based conciliatory approach to dispute resolution rather than an adversarial approach. For this reason, Panchayats evolved into an institution of justice (not Law) in India over thousands of years. The realization that the multiplicity of judges usually ensures a fair trial meant that the Panchayats consisted of five-members rather than a single judge, as in colonial courts (Madsen, 1991). To decolonize the structure of justice in India, a harmonization of this traditional Indian system of justice with the modern system is needed. Instead of universalizing the adversarial system of justice, it would be preferable to give people a choice and the option of a conciliatory approach to justice. This also means that in cases where conciliation can be a choice there must be an element of popular choice and multiplicity (such as Panchayats) in the appointment of judicial officers (Ray & Srivastava, 2017).

The modern system of justice evolved over hundreds of years in Euro-centric societies, which have become Diffracted Societies as compared to India which still remains a primarily Fused Society (Wen-shien, 2008) as a consequence of colonization (the production and reproduction of feudalism in Indian society) (Guha, 1982). Even in this information age, different communities in India obey different laws, customs and practices; the entire colonial system of justice is out of tune with Indian society (Knox, 2001). One of the things that hugely complicate the administration of justice in India is the structure of the colonial courts. India is 13.5 times the size of Britain and its population is 20 times bigger; every judicial matter cannot be finally resolved by a Supreme Court sitting in Delhi.

As pointed out earlier, it is impossible to return to the old system of justice that existed in India; this would not only change the rules of the game, but also mean that an unjust system by contemporary societal standards that could not evolve in its natural course would be thrust upon the people and may lead to further injustice. The structure and procedures of the colonial system of justice may not be consistent with Indian societal norms; however, the last 300 years of acclimatization have made Indians accept the more substantial meaning of modern justice itself, which is based on universal ethics and norms and most importantly the concept of equity itself (Rawls, 2020). The only way forward would be to harmonize these modern concepts of justice with a post-colonial solidarity-based conciliatory structure of justice through Panchayats. In matters of civil nature, a conciliatory approach is quite easy to implement, problems arise in matters of criminal nature: Would conciliation work where there is a murder or rape involved? Crimes involve the state itself as crimes are essentially acts of disobedience committed against the authority of the state and the state imposes punishment to ensure discipline in society (Foucault, 2012).

Gandhi (1921) may have been one of the first political thinkers to present a systematic critique of the modern state and suggested a limitation of the state itself. Most political philosophies of the late 20^th century and the 21^st century, including neo-liberalism, the new right, post-political philosophies, and new managerialism all agree on at least one point, that is, the limitation of the state itself (Risse, 2011). Limitation of state will result in a limited definition of crime and punishment itself and therefore a better understanding of solidarity based conciliatory post-colonial justice. Limitation of the state in the colonial sense would also mean that democracy would be decentralized in the Gandhian sense (Nadkarniet al., 2017).

This in turn would mean that access to statist capital would shift to the fields of Panchayats and the Gram Sabha, and although the struggle for dominance within these fields would mean that the access to statist capital is not uniformly distributed but, since the size of the field itself is limited to a local area, the influence that material capital plays in this field would also become limited (Bourdieu, 2004; Shusterman, 1999). Other symbolic capitals⁹⁹ 9 Symbolic capitals associated with caste, religion, gender, education and skill etc… may still play a role and the character of the juridical field might not yet be determined by access to justice itself; however, the small size of the field itself would mean that the struggles themselves are not on a large scale. It is the belief of the author that over a relatively short period of time the agents within this new juridical field would learn the rules of the game and adapt their practice and habitus to suit the struggles within the field boundaries; practice and habitus that would now be similar to that which developed in Indian society and the Indian’s habitus itself.

As pointed out earlier, Indian society even to this day after three centuries (two centuries of colonial rule and almost a century of post-independence life with colonial institutions) of colonial experience institutionally discourages conflict of any kind (Luhmann, 1988). This is not the same as the discouragement of a dispute or disagreement which is actively encouraged in Indian culture (Shastrarth¹⁰¹⁰ 10 Etymologically rooted in ancient Sanskrit texts on medicine (Charak Samhita and Sushruta Samhita) and meaning something similar to what can be called differential diagnostics in modern medicine. This means encouragement of a difference of opinions and debates at an intellectual level. ). This distinction is very important as Gandhi pointed out that a dispute or disagreement does not necessarily lead to violence until a conflict arises (Parekh, 2001). A conflict arises when more than one party holds a position and is unwilling to compromise that position under any circumstance (Habermas, 2002). According to Gandhi, this position of conflict creates a cycle of violence¹¹¹¹ 11 Violence here does not only refer to physical violence but also mental, psychological and spiritual violence. If every party to a conflict is unwilling to compromise, it can only lead to a winner and a loser in the conflict. This act of winning itself is a violent act on the loser and as such the only response of the loser is to react with more violence. This is similar to what Fanon calls psycho-affective violence, which then results into the reactionary violence of the native towards to colonizer. and therefore can never result in justice. This kind of violence almost inevitably ends in punishment, which perpetuates further violence (Gandhi, 1965; Parekh, 2001). Conflict lies at the heart of politics and therefore, as a corollary, the modern judicial process also becomes political in character. Justice takes a back seat, and political competition takes front seat. The structural corruption within the colonial juridical field that has always been present makes this judicial process, even more political¹²¹² 12 Explained earlier in the previous section; how the struggle in the colonized juridical field in not for access to juridical capital (or justice) but other forms of symbolic capital, especially political capital characterised by usurpation and dispossession rather than representation. .

Even now, Indian society has not been able to identify with this kind of deeply political process. Therefore, the aim always is to avoid the courts; being involved in litigation, is to this day considered a matter of great shame and dishonor amongst Indians. The profession of a lawyer in India is one of the most dishonorable professions and therefore comprised of the least competent people in the workforce.

A solidarity based judicial structure means that the people in disputes will themselves be in a position to resolve them. The access to statist capital would be decentralized and Panchayats would become the site for the struggles within a decolonized field (Bourdieu, 2004; Shusterman, 1999). This decolonized legal system would slowly evolve to operate on the dialogic of acceptability and unacceptability of conciliation rather than legality or illegality (Luhmann, 1988). If the cycle of violence is broken there is an increased chance that this dialogic of the new legal system will be closer to the binary logic of justice and injustice rather than legality and illegality. Another corollary of the breaking of this cycle of violence according to Gandhi (1965) is that the incidences of violent crimes would substantially reduce further limiting the need for any adversarial justice or punishment.

Conclusion

Decolonization of justice does not require the destruction of the existing structures of law; rather it requires solidarity-based non-violent approach to shift the focus away from a conflict ridden and violent adversarial process to a non-violent conciliatory process. As Munshi Premchand, who is widely considered the greatest of all Hindi Litterateurs, writes in his hugely popular work “Panch Parmeshwar¹³¹³ 13 A short story written by Munshi Premchand depicting the Panchayat and village society of colonial times.  https://thelabyrinthinmyhead.wordpress.com/wp-content/uploads/2019/01/comparison-of-translated-works_-panch-parmeshwar-by-munshi-premchand.pdf accessed on 11.10.2024. ”, the status of the Panchayat is equal to that of God itself and the belief of people in its justice absolute. This is not only because of religious and social sanction behind the work of the Panchayats, but because of the direct involvement of the people in the solidarity-based conciliatory process. In “Panch Parmeshwar” when there is a dispute brought to the panchayat for resolution, the parties to the dispute name the five members (Panch) of the Panchayat and voluntarily accept their decision. At the same time, the Panch before pronouncing any judgement, offers various alternatives that may be acceptable to disputing parties. Judgements are pronounced only when none of the suggested alternative resolutions are accepted by either party (Ray & Srivastava, 2017). This kind of mutual respect not only between disputing parties, but also among the disputing parties and the Panchayat itself lies at the heart of the solidarity that Gandhi alludes to.

Decolonization in the Gandhian sense must be epistemically non-violent, and this includes an epistemically non-violent approach towards institutions as well. The process of decolonization must also follow the same conciliatory process rather than a political process and it must afford the institutions of justice the time and space to evolve the means of solidarity based conciliatory justice. The means and ends must both be non-violent; if the means are violent the ends would always be violent (Erikson, 1993; Gandhi, 1965). Further research may be required to develop a detailed non-violent, non-political solidarity-based approach to the study of decolonization. However, it is important to understand that unlike what most scholars in post-colonial studies believe (Fanon, 2007; Said, 2014; Spivak, 2003); the reaction to colonial violence is not always violent. Gandhi proved this empirically during the Freedom movement in India, and there is an infinite scope for the development of a non-violent post-colonial theory. Even when Mignolo (2009) talks of epistemic disobedience he talks about civil disobedience at an epistemic level, there is no reason to believe that this civil disobedience cannot be non-violent.

It is highly unlikely that any version of decolonization is ever going to result in an absolutely non-political and non-violent Indian society; however, if the colonial anthropological data about the religions, cultures and society of India are any indication at all, there is no other society in the world more suited to an experiment in non-violent Decoloniality than India.

Conflict of Interest

The author declares that they do not have any conflict of interest.