Paradoxes in Formal Courts versus Informal Justice / Quasi-Legal Processing of Human Rights Cases in India
Continuing from my previous post, I will elaborate here on some of the initial arguments from my forthcoming book, INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS based on the empirical research I conducted throughout India, which I described earlier. Some of these issues are discussed in my forthcoming article, International Human Rights and Southern Realities, 112 HUMAN RIGHTS QUARTERLY (2010), HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1592042 . There, I argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the understandings and perceptions of Southern actors (i.e. individuals from the Global South), but that simultaneously imbeds their perspectives within the realities of human rights case processing in the legally pluralistic Global South. This involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases.
PARADOXES IN FORMAL COURTS VERSUS INFORMAL JUSTICE / QUASI-LEGAL MECHANISMS IN INDIA – Paradoxically, the data suggest that the bulk of lawyer advocates and judges working in the lower criminal and civil courts, as well as court-linked ‘lok adalats’ (mediations)–who process great numbers of cases involving serious violence against women involving food deprivation as a means of punishment, physical and mental torture, and rape–utilize international human rights principles to a far lesser extent, if at all, in dealing with these cases than do some informal justice / quasi-legal mechanisms processing the very same type cases. In contrast, the non-lawyer mediators/arbitrators in the informal justice mechanisms studied—who were not only not formally legally trained, but many of whom had poor literacy skills—were far more geared towards resolving cases utilizing principles of international human rights law and CEDAW in particular (e.g. equality, autonomy).