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Why American Lawyers Should Go to India: Retracing Galanter's Intellectual Odyssey

  • Clark D. Cunningham

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1 136 Cong. Rec. No. 145, 16, 419 (daily ed. 22 Oct. 1990).

2 See notes 37-42 & 106-9 infra and accompanying text.

3 See Article 368.

4 See generally Morgan, David G., “The Indian ‘Essential Features’ Case,” 30 Int'l & Comp. L.Q. 307 (1981).

5 James E. Krier, “The Environment, the Constitution, and the Coupling Fallacy,” 32 Mich. L. Quadrangle Notes, Spring 1988, at 34.

6 Article 48A (42d Amendment, 1976) (“The State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country”). This article is nonjusticiable because it falls within the section of the Indian Constitution called Directive Principles. See notes 31–36 infra and accompanying text. For examples of the impact of this provision on environmental litigation, see, e.g., Rural Litigation and Entitlement Kendra, Dehra Dun v. State of U.P., All India Rep. 1985 Supreme Court 652 (limiting limestone quarrying due to environmental impact); M. C. Mehta v. Union of India (Sri Ram Fertilizer Gas Leak), All India Rep. 1987 Supreme Court 965 (permitting public-spirited citizen to initiate litigation to investigate cause of major leak of toxic gas from industrial facility near Delhi and to mandate prospective prevention measures). Hereafter citation to Indian Supreme Court decisions shall follow the standard format used in India: A.I.R. [year] S.C. [page]. For a discussion of the Rural Litigation case, see Jacob, Alice, “Responsible Development and Ecological Balance,” 27 J. Indian L. Inst. 483 (1985).

7 Chayes, Abram, “The Role of the Judge in Public Law Litigation,” 7 Harv. L. Rev. 1281, 1282 (1976). The fame and influence of this article are detailed in Marcus, Richard L., “Public Law Litigation and Legal Scholarship,” 21 U. Mich. J.L Reform 647 (1988). Chayes has acknowledged the extent of Supreme Court rejection of this model: Chayes, , “The Supreme Court 1981 Term—Foreword: Public Law Litigation and the Burger Court,” 96 Harv. L Rev. 4, 7 (1982); see also Marcus, id. at 648, 668, 671, 691.

8 See notes 50-54 infra and accompanying text. For an application of Chayes's analysis to public interest litigation in the Indian Supreme Court up through the end of 1985, see Cunningham, Clark D., “Public Interest Litigation in the Indian Supreme Court: A Study in Light of the American Experience,” 29 J. Indian L. Inst. 494 (1987).

9 See Lushing, Susan C., “Comparative Criminal Justice–Search and Seizure, Interrogation, and Identification of Suspects in India: A Research Note,” 10 J. Crim. Just. 239 (1982). For example, most searches must take place in the presence of two local private citizens selected to safeguard the rights of the accused and later attest to the propriety of the search. Id. at 241. Exigent circumstances may excuse obtaining a warrant, but the police officer must record in writing before conducting the search the grounds for exigency and the specific items he expects to find; this record must be promptly delivered to the nearest magistrate. Id. at 240.

10 See Winter, Steven L., “Bull Durham and the Uses of Theory,” 42 Stan. L Rev. 639, 678–80 (1990).

11 Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970); id., “Second Thoughts on Paradigms,”in id., The Structure of Scientific Theories (Urbana: University of Illinois, 1977).

12 Winter, 42 Stan. L. Rev. at 680.

13 See notes 37–59, 63–75, and accompanying text. Galanter has served as both editor of the Law & Society Review (1972-76) and president of the Law and Society Association (1983-85) and is currently Director of the Institute for Legal Studies at the University of Wisconsin Law School.

14 A number of programs are available to support American lawyers interested in comparative study of the Indian legal system. The Indo-U.S. Subcommission on Education and Culture funds both short-term (2-3 month) and longer (6-10 month) fellowships in India intended particularly for persons with no prior experience or expertise regarding India; practicing attorneys as well as legal academics are eligible. These Indo-American Fellowships as well as the more familiar Fulbright program for law teachers and scholars are administered by the Council for the International Exchange of Scholars in Washington, D.C. The Berkeley Professional Studies Program (University of California) administers a one-year program in India available to students from any U.S. law school. Fellowships and other research support are also available from the American Institute of Indian Studies in Chicago. Despite the many opportunities for American lawyers to go to India for comparative study, and the passage of decades during which many of India's brightest legal scholars have come to the United States for advanced graduate work, in Galanter's words, “India has been invisible to the American law school.” Marc Galanter, “When Legal Worlds Collide: Reflections on Bhopal, the Good Lawyer, and the American Law School,” 36 J. Legal Educ. 292, 293 (1986). For trenchant criticisms of attitudes exhibited by the U.S. legal academy toward the Indian legal system, see Dhavan, Rajeev, “Borrowed Ideas: On the Impact of American Scholarship on Indian Law,” 33 Am. J. Comp. L. 505 (1985); Upendra Baxi, “Understanding the Traffic of ‘Ideas’ in Law between America and India,” in Robert M. Crumden, ed., Traffic of Ideas between India and America 333 (Delhi 1985).

15 There are, of course, at least two American audiences potentially interested in reading a review of Galanter's most recent book about the Indian legal system who would bring to their reading greater sophistication than the generalized readership targeted by my primary purpose. The first would be India specialists from both law and social science faculties. To the extent that they find this review does not critique the book closely enough for a person already familiar with the Indian legal system, I would refer them to Rajeev Dhavan's detailed and exhaustive Introduction (at xiii-c), which provides such a critique specifically designed for an audience of Indian legal scholars. The second audience would be scholars in the law and society field interested because of Galanter's continuing contributions in that area. I hope that this audience will find part II of particular interest because it explores connections not previously made explicit between Galanter's well-known work of the last two decades on the U.S. legal system and his earlier field research in India.

16 Because my limited goal in part I is to assist an American reader to begin a study of the Indian legal system, I have generally not cited materials readily available only in India. The resulting omission of many leading articles and books by Indian authors is not at all intended to suggest that the best materials on the Indian legal system are only to be found in the U.S. periodicals primarily cited.

17 In creating this overview, I have also drawn from Marc Galanter & Robert M. Hayden, “Law: Judicial and Legal Systems of India,” in A. T. Embree, ed., Encyclopedia of Asian History (New York: Charles Scribner's Sons, 1988) (“Galanter & Hayden, Encyclopedia“). Galanter and Hayden term these four periods: Hindu, Muslim, British, and modern. For another good overview, see Robert L. Kidder, “Western Law in India: External Law and Local Response,” in A. M. Johnson, ed., Social Systems and Legal Process 155 (San Francisco: Jossey-Bass, 1978).

18 See Lariviere, Richard W., “Justice and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past,” 48 J. Asian Stud. 757, 758 (1989).

19 Id. at 758. For an extended discussion of the relationship between religion and law during the Hindu period, see Gray L. Dorsey, Jurisculture: India (New Brunswick, N.J.: Transaction, 1990).

20 Galanter & Hayden, Encyclopedia 411.

21 The procedural features of the traditional panchayat are described and contrasted with official “informal” tribunals of the modern period below at pp. 797–99.

22 Lariviere, 48 J. Asian Stud, at 760.

23 Another analogy might be to American Protestantism. In both the sastric and Protestant traditions a single canonical set of sacred texts is recognized as authoritative, there is broad consensus about scholarly standards of interpretation, and yet the same textual provision can be given widely varying applications. Take, for example, the question whether women should be ordained as clergy. Each Protestant denomination has wrestled with the question separately and reached different answers at different points in time, yet each denominational decision is justified by reference to the same sacred text, the Bible, and to the same customs and conventions of contemporary society. A Methodist decision to ordain women was not binding on Episcopalians, yet had its effect over time in ways both rhetorical and exemplary.

24 A good summary of the development of a judicial system under the East India Company can be found in Catherine S. Meschievitz, “Panchayat Justice: State-Sponsored Informal Courts in 19th and 20th Century India” (Disputes Process Research Program: Working Paper No. 8:1) 5–9 (Madison: Institute for Legal Studies, University of Wisconsin Law School, 1987) (“Meschievitz, ‘Panchayat Justice’”).

25 See also Lariviere, 48 J. Asian Stud., at 759–63.

26 At 23, citing P. V. Kane, Hindu Customs and Modern Law 44 (Bombay: University of Bombay, 1950).

27 The codes did create some special provisions and exceptions tailored to the social context of India; further, some scholars, notably Derrett, have seen subtle Indian-British syncretism in these codes, especially as retained and interpreted in Independent India. See at 48 n.55, n.56; 50 n.61.

28 At 24-25; see Galanter & Hayden, Encyclopedia 413 (cited in note 17). For a more extended discussion of the relationship between the sastric tradition and British legal principles during the colonial period in the specific context of caste issues, see at 144–54.

29 Article 32. See at 221–22.

30 It contains over 390 articles as well as a number of supplementary schedules and takes up more than 180 printed pages.

31 Granville Austin, The Indian Constitution: Cornerstone of a Nation 76 (Oxford: Clarendon Press 1966) (“Austin, Indian Constitution”); H. M. Seervai, I Constitutional Law of India: A Critical Commentary 53 (3d ed. Bombay: Tripathi, 1983) (“Seervai, [vol.] Constitutional Law”).

32 Part III includes freedom of religion, assembly, association, and movement. Three Part III articles reach to private action: Article 17 abolishing untouchability; Article 15(2) prohibiting discrimination by shops, restaurants, and other public places; and Article 23 barring forced labor.

33 Part IV imposes on the state such duties as free elementary education, protection of the environment, and provision of free legal aid.

34 Austin, Indian Constitution 78.

35 See discussion of this issue in Upendra Baxi, Courage, Craft and Contention: The Indian Supreme Court in the Eighties 89–92 (Bombay: Tripathi, 1985) (“Baxi, Courage”).

36 See, e.g., Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180, 194 (construing Article 21 fundamental right to life in light of Directive Principles regarding providing adequate means of livelihood, Articles 39 and 41).

37 Article 15(3), (4). Article 16 guarantees equal opportunity in government employment, prohibits discrimination in such employment on the same grounds set forth in Article 15, and contains an exception for “any backward class of citizens” not already adequately represented in government employment.

38 Marc Galanter, Competing Equalities: Law and the Backward Classes in India 14 (Berkeley: University of California Press, 1984) (“Galanter, Competing Equalities”).

39 The Indian Constitution affirmatively abolishes the practice of untouchability and authorizes the enactment of legislation to punish any effort, public or private, to enforce the disabilities associated with untouchability. Article 17. See pp. 792–93 infra regarding the uneven success of legislation intended to implement this provision.

40 See Galanter, Competing Equalities 29–40.

41 Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

42 Litigation arising out of the scheme of legislative reservations is discussed below at p. 802-3. The reservation of legislative seats originally had a 10-year limit, but the Constitution has been repeatedly amended to continue the reservations (at 192–96).

43 At 37-91, discussed below at pp. 797-99. This initial two-decade period is also discussed in the Introduction by Dhavan, who summarizes and criticizes India's efforts under Nehru to place law at the service of his five-year plans to implement socialism (at xxi-xxiii). For a critique by Galanter of the assumption that Western legalism should be relied on to promote economic and social development in India and other non-Western countries, see David M. Trubek &. Marc Galanter, “Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States,” 1974 Wis. L. Rev. 1062.

44 Indira Gandhi was the daughter of India's first prime minister, Jawaharlal Nehru. Neither she nor her son Rajiv Gandhi, who succeeded her as prime minister for five years following her assassination in 1984 and was himself assassinated on 21 May 1991 while seeking to regain office in national elections, are related to Mohandas K. Gandhi, the famous advocate of nonviolence and leader of India's independence movement. (M. K. Gandhi is widely known as “Mahatma” Gandhi; “Mahatma” is an honorific title, not a first name.)

45 Almost equally impressive evidence of the integrity of India's democratic system is that Indira Gandhi was neither imprisoned nor banned from political life by her successful opponents. Rather she was acquitted in a trial following her loss of power and later became prime minister again.

46 See note 4 supra and accompanying text.

47 See Baxi, Courage 31-120 (cited in note 35); Seervai, 2 Constitutional Law 979-1063 (cited in note 31).

48 Galanter's analysis of this period is discussed infra at p. 793.

49 See Bloch, Frank S. & Ishar, Iqbal S., “Legal Aid, Public Service and Clinical Legal Education: Future Directions from India and the United States,” 12 Mich. J. Int'l L. 92 (1990), for an overview of these efforts and, in particular, the role of Indian law schools in addressing the need for legal aid. See also Gordon, Richard K. Jr., &. Lindsay, Jonathan M., “Law and the Poor in Rural India: The Prospects for Legal Aid,” 5 Am. U.L. Int'l L. & Pol'y 655 (1990).

50 These petitions were filed pursuant to the Supreme Court's original jurisdiction under Article 32; see note 29 supra and accompanying text.

51 Bhagwati played a key role in the development of public interest litigation, both as supreme court justice before 1985 and as chief justice from 1985 to 1986. For his own account of the movement, see Bhagwati, P. N., “Judicial Activism and Public Interest Litigation,” 23 Colum. J. Transnat'l L. 561 (1985); and Garry Sturgess &. Philip Chubb, “Interview with Prafullachandra Bhagwati,”Judging the World: Law and Politics in the World's Leading Courts 429–38 (Sydney: Butterworths, 1988) (“Sturgess &. Chubb, Judging the World”).

52 See note 8 supra and accompanying text. One of India's leading experts on the subject, Professor Upendra Baxi, prefers to refer to the movement as “social action litigation.” See Baxi, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,” 29 Review (International Commission of Jurists), Dec. 1982, at 37.

53 Recent articles on the subject by Western legal scholars include Jamie Cassels, “Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?” 37 Am. J. Comp. L. 495 (1989); Craig, P. P. & Deshpande, S. L., “Rights, Autonomy and Process: Public Interest Litigation in India,” 9 Oxford J. Legal Stud. 356 (1989); Cunningham, 29 J. Indian L. Inst. (cited in note 8); Carl Baar, “Social Action Litigation in India: The Operation and Limits of the World's Most Active Judiciary” (presented to the Research Committee on Comparative Judicial Studies, International Political Science Association, 1989) (copy on file with author). A very readable brief history of India's public interest litigation movement can be found in Sturgess & Chubb, Judging the World 46–57. For varying Indian assessments of the movement, see, e.g., S. K. Agrawalla, Public Interest Litigation in India; A Critique (New Delhi: Indian Law Institute, 1985); Dhavan, Rajeev, “Managing Legal Activism: Reflections on India's Legal Aid Programme,” 15 Anglo-American L. Rev. 281 (1987); Baxi, 29 Review.

54 Cassels, Jamie, “Bitter Knowledge, Vibrant Action: Reflections on Law and Society in Modern India,” 1991 Wis. L Rev. 109, 126.

55 See Beer, L. W. et al, “Asian Legal Studies in the United States: A Survey Report,” 29 Asian Legal Stud. 501 (1978).

56 The following table summarizes some of the examples given in the Epilogue of how the Indian “reality” violated Galanter's expectations based on the paradigm he learned in law school:

57 9 Law & Soc'y Rev. 95 (1974). In 1983 the Social Sciences Citation Index indicated that this article had been cited in over 155 publications since 1974, making it at that point the most-cited article published in the history of the Law & Society Review. See “This Week's Citation Classic,” 52 Current Contents, 26 Dec. 1983, at 24 (ISI).

58 See also “This Week's Citation Classic,”id., in which Galanter is reported as saying in 1983: “Although India is hardly mentioned in the [‘Haves’] paper, my Indian work was a real, if ghostly, presence in it. My years of immersion in Indian law, I like to think, emboldened me to discard much of the received view of how legal systems work and to develop a fresh perspective from which to view the legal process in America.”

59 The 1968 essay can be interpreted retrospectively in light of the later “Haves” article as concluding that the absence of “repeat players” among the Untouchables was a major factor in the ineffectiveness of the statutes intended to benefit them (at 211–12, 214) and that, ironically, the higher potential penalties under the 1955 Act created incentives for parties hostile to claims of Untouchables to marshall “repeat player” resources and strategies (at 221).

60 There seems to be more recent U.S. scholarship on this subject than on virtually any other aspect of the Indian legal system. See, e.g., Kidder, Robert L., “Formal Litigation and Professional Insecurity: Legal Entrepreneurship in South India,” 9 Law & Soc'y Rev. 11 (1974);Morrison, Charles, “Clerks and Clients: Paraprofessional Roles and Cultural Identities in Indian Litigation,” 9 Law & Soc'y Rev. 39 (1974);id., “Munshis and Their Masters: The Organization of an Occupation Relationship in the Indian Legal System,” 31 J. Asian Stud. 309 (1971); and the special issue on the Indian legal profession in 3 Law & Soc'y Rev. Nos. 1-2 (1968-69). See also Mendelsohn, Oliver, “The Pathology of the Indian Legal System,” 15 Mod. Asian Stud. 823 (1981).

61 See similar critiques of India's public interest litigation in Agrawalla, Public Interest Litigation, and Dhavan, “Managing Legal Activism” (both cited in note 53).

62 A more extensive description of these and similar programs can be found in Rajeev Dhavan, “Public Interest Litigation: An Investigative Report” (New Delhi: Committee for Implementing Legal Aid Schemes, 1981) (copy on file with author). Another recent development briefly mentioned by Galanter (at 84) now beginning to receive comparative attention is the lok adalat (“peoples court”) movement. See Gene Kassebaum, “ADR in India: The Lok Adalat as an Alternative to Court Litigation of Personal Injury and Criminal Cases in South India” (Program on Conflict Resolution Working Paper Series 1989-5, University of Hawaii at Manoa); Bloch & Ishar, 12 Mich. J. Int'l L. 114–15 (cited in note 49).

63 19 J. Legal Pluralism 1 (1981).

64 I do not want to suggest, however, that Galanter invented the idea of legal pluralism by himself or was solely influenced by his Indian studies. “Justice in Many Rooms” appeared in the context of extensive scholarly attention to the idea of legal pluralism, as evidenced by the title of the journal in which it appeared. See Robert Meister, “Discrimination Law through the Looking Glass,” 1985 Wis. L. Rev. 937, 969-71 (placing Galanter's theory of pluralism in scholarly context).

65 19 J. Legal Pluralism at 17.

66 Id. at 1.

67 Id. Galanter's terminology of legal pluralism and legal centralism is related to the work of the Dutch legal sociologist John Griffiths. See Griffiths, “What Is Legal Pluralism?” 24 J. Legal Pluralism & Unofficial L. 1 (1986).

68 19 J. Legal Pluralism at 17.

69 Id. at 18 n.26.

70 Id. at 6–8.

71 Id. at 8–11. Galanter adapted these concepts of “endowments” from Robert H. Mnookin & Lewis Kornhauser, “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale L.J. 950 (1979).

72 19 J. Legal Pluralism at 9, 13. In terms of the health metaphor, health-sustaining activities undertaken independently of medical advice and supervision are nonetheless often influenced by the medical model. Nutrition and exercise are the most obvious examples.

73 Id. at 11.

74 Id. at 1, 10-13, 32.

75 A medical analogy would be to view health care for lung cancer not solely as successful treatment of patients entering hospitals but also in terms of the efficacy of the messages sent out about the dangers of smoking, an efficacy clearly affected by the agricultural economy of certain southern states, the seniority system of congressional committees, the power of advertising, and cultural images of maturity and sexuality.

76 References in 19 J. Legal Pluralism to the Indian legal system appear at 13 n.16, 17 n.24, 24, 25, 26 n.37, and 28–29.

77 Fuller, Lon, “The Law's Precarious Hold on Life,” 3 Ga. L. Rev. 530, 540 (1969), quoted in 19 J. Legal Pluralism at 27 n.40.

78 The second chapter is entitled, “The Displacement of Traditional Law in Modern India.”

79 Chapter 4 is co-authored with the noted Indian legal scholar, Upendra Baxi, and is derived in part from an earlier Baxi article published in 18 J. Indian L. Inst. 375 (1976). This is the only essay in the book not written solely by Galanter.

80 At 55 n.3 (citing Bernard S. Cohn, “Anthropological Notes on Disputes and Law in India,” in Laura Nader, ed., The Ethnography of Law (American Anthropologist Spec. Pub. 67) at 82, 90 (1965).

81 The constituency of a panchayat was often functional (e.g., trade guild) or ascriptive (caste) rather than geographic. See note 84 infra.

82 For a very interesting account of a contemporary village panchayat that seems to be functioning in the traditional way, see Erin Moore, Conflict and Compromise: Justice in an Indian Village (Berkeley: University of California Press, 1985) (“Moore, Conflict and Compromise“). Moore reports that the villagers envision their entire community as one extended family with fictive kinship relationships. Id. at 109.

83 See M. K. Gandhi, Hind Swaraj or Indian Home Rule (Ahmedabad, India: Navajivan, 1938).

84 Some scholars doubt that traditional panchayats functioned as village councils and assert they were rather based on the caste or guild as the functional unit. A caste panchayat might appear to be a village council where a village population largely consisted of a single caste.

85 Technically, two distinct types of panchayat were established at the local level to implement Article 40: (1) the gram panchayat, which exercised mingled administrative and judicial functions somewhat like the “weak mayor” U.S. city council, and (2) the nyaya panchayat, which functioned as an informal court. For purposes of this article, I have taken the liberty of referring to the nyaya panchayat simply as the panchayat.

86 See also Catherine S. Meschievitz &. Marc Galanter, “In Search of Nyaya Panchayats: The Politics of a Moribund Institution,” in Richard L. Abel, ed., 2 Politics of Informal Justice 47 (New York: Academic Press, 1982) (“Meschievitz & Galanter, ‘In Search of Nyaya Panchayats’”); Meschievitz, “Panchayat Justice” (cited in note 24).

87 See, e.g., Sally E. Merry, Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans (Chicago: University of Chicago Press, 1990), and sources cited therein. Also suggestive from a comparative standpoint are Galanter's observations that the panchayat experiment may have been less a revival of community control than an extension of state power into the community and that many of the “new panchayats” may have functioned simply as petty courts to relieve congestion of courts at “higher” levels (at 87–88). See also Meschievitz, “Panchayat Justice” at 35-43 (suggesting that the persistence of rhetorical promotion of “panchayat justice” despite lack of local support and low utilization of the state-sponsored panchayat institutions points to symbolic and ideological—rather than simple dispute-processing—functions).

88 At 70. As for statistics, apparently all that Galanter had to work with were government reports from two states (Uttar Pradesh for 1950-56 and 1960-70 and Rajasthan for a single year, 1961-62); fieldwork data from another state (Bihar) for a 16-year period drawn from an unpublished doctoral dissertation; and a 1967 study of the state of Bengal. Even for these states, he admits having almost no data regarding the subject matter of disputes (beyond breakdown between civil and criminal), the quality of justice processing, or outcomes (at 83). Some additional empirical data can be found in Meschievitz & Galanter, “In Search of Nyaya Panchayats” (collecting post-1970 studies and reporting on a 2-month field study in the district of Uttar Pradesh during which two panchayat sessions were observed).

89 Writes Dhavan in the Introduction: “[T]he panchayats are not really a good example of the power and influence of the modern state and modern law… [T]he case study … is not a wholly convincing example of either the displacement of traditional law or the aborted restoration of indigenous law. Neither ‘modern’ nor ‘traditional,’ they are just part of a badly devised plan” (at xli).

90 See notes 24-28 and accompanying text.

91 Conflict and Compromise (cited in note 82).

92 See especially “The Case of the Stolen Wife,”id. at 46–61. It may be that the community Moore studied was atypical in the vitality of its traditional panchayat; see, however, Meschievitz, Panchayat Justice at 19 n.22 (nonofficial panchayats continue to enjoy strong support and are well utilized for the processing of personal disputes).

93 A.I.R. 1966 S.C. 1119 (1966).

94 Bombay Hindu Places of Public Worship (Entry Authorization) Act, 1956, No. 31 of 1956, § 3, reprinted at 258.

95 Galanter had already been working toward a reconceptualization of First Amendment doctrine before the Satsangi decision. See Marc Galanter, “Religious Freedoms in the United States: A Turning Point?” 1966 Wis. L. Rev. 216 (1966).

96 See Indian Constitution, Article 17, discussed supra note 39. This approach was used in an earlier case presenting a similar conflict between temple-entry legislation and Article 26(b). Sri Venkataramana Devaru v. State of Mysore, A.I.R. 1958 S.C. 255 (discussed at 244).

97 According to Galanter, the Satsangis in fact failed to muster any significant evidence to support their claim to be a non-Hindu sect. Their beliefs, symbols, and practices all fell well within the Hindu mainstream (at 244 n.36).

98 See notes 18-23 supra and accompanying text. For a similar argument that Indian judges may be functioning in a quasi-religious role like traditional pandits, illustrated by a different Indian Supreme Court decision, see Lariviere, 48 J. Asian Stud, at 764–67 (cited in note 18).

99 These entitlements are also generally provided for members of Scheduled Tribes. See notes 37–42 and accompanying text. Because this section is primarily addressed to conceptions of caste, entitlements will be discussed as if they only applied to members of Scheduled Castes.

100 Chatturbhuj Vithaldas Jasani v. Mordeshwar Parashram, A.I.R. 1954 S.C. 236.

101 “[T]he right we are considering here is the right of the old body [the Mahar caste] … to send a member of its own fold to Parliament.” Jasani, A.I.R. 1954 S.C. at 244. The courts have provided further support for castes reconceived in new, nonhierarchical roles by giving them rights of autonomy and self-determination as religious sects and by giving “regulative endowments” to their associational activities by abstaining from review of caste determinations of membership (at 173–79).

102 See 142-44 for Galanter's explanation of these models.

103 At 181. The book's editor, Dhavan, does not share Galanter's optimistic view of the role of castes in Independent India and generally criticizes him as imposing his own liberal ideals on the Indian situation through the legal pluralism paradigm. See Introduction at li-lvi.

104 To fully appreciate the shift in Galanter's thinking over this period, one should read his article co-authored with David Trubek, 1974 Wis. L. Rev., esp. at 1078–82 (cited in note 43).

105 Cf. the titles of chap. 2, “The Displacement of Traditional Law in Modern India,” and chap. 3, “The Aborted Restoration of ‘Indigenous’ Law in India.”

106 The term apparently originated among Indian legal scholars. Galanter, Competing Equalities 2 (cited in note 38).

107 Blumrosen, Alfred W., “Some Thoughts on Affirmative Action Here and in India: Galanter's Competing Equalities, 1985 A.B.F. Res. J. 653. See also, e.g., Meister, Robert, “Discrimination through the Looking Glass,” 1985 Wis. L. Rev. 937;Wasby, Stephen L., “Indian ‘Compensatory Discrimination’ and American ‘Affirmative Action’: Some Parallels—A Review of Galanter's Competing Equalities,” 8 Law & Pol'y 379 (1986);Gadbois, George, “Affirmative Action in India: The Judiciary and Social Change,” 8 Law & Soc. Pol'y 329 (1986);Dhavan, Rajeev, “Marc Galanter's Competing Equalities” 8 Law & Pol'y 365 (1986);Kidder, Robert L., 23 Society 88 (1986);Liebman, Lance, “Equalities Real and Ideal: Affirmative Action in Indian Law,” 98 Harv. L. Rev. 1679 (1985);Bloch, Frank S., 18 Vand. J. Transnat'l L. 173 (1985);Lariviere, Richard W., 10 Hastings Intemat'l & Comp. L. Rev. 199 (1986).

108 Galanter does, however, extensively criticize one of the most important recent decisions, State of Kerala v. N. M. Thomas, A.I.R. 1976 S.C. 490, as potentially disrupting this discourse (at 265–78).

109 Resentment by upper-caste Hindus against preferential policies exploded into violence in 1990 when then Prime Minister V. P. Singh issued an order reserving 27% of central government jobs for members of the “Other Backward Classess” (see note 37 supra and accompanying text), low-caste Hindus who had not previously received as much preferential treatment as the Scheduled Castes and Tribes. The subsequent fall of the Singh government is widely attributed in part to this backlash. Nonetheless, a year later, on 25 September, 1991, the new government of P. V. Narasimha Rao once again ordered similar quotas.

110 For example, the relationship of castes to religion raises secularism issues very different than the issue of race in this country. See at 204–7.

Why American Lawyers Should Go to India: Retracing Galanter's Intellectual Odyssey

  • Clark D. Cunningham

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