Apr
20
A lot of people ask me a lot whether will a private justice system (or third party arbitration) would work. Recently I found someone saying this to an argument I made for third party arbitration system.
My point:If both the parties don’t agree upon one common arbitration then you both can go to your own respective third party arbitrations and they can settle down on a common resolution.
His Rebuttal: This could be quite sufficient had there been a fight between two saints.
But this doesn’t happen in real world. A fraud or killer will simply not accept that he has done something wrong. Especially when he know he will be facing consequences.
At the end, I must state the biggest limitation of this system -
This system takes human as robots, fully programmed to act in a specific fashion. System should work fine as long as this balance is maintained.The moment, people start using their unpredictable/irrational mind, without being afraid of people banishing them, the system will be in big trouble.
Its clear the people are somehow so much distorted into the current political system that looking as much as 60 years back would be too unrealistic of a scenario.
India has had a long tradition of seeking third party arbitration justice. Considering most of the India resides in villages, they developed their own dispute resolution system, called as “Panchayat”. No don’t mistake it as the current mess the government has made in the name of Panchayati Raj.
The britishers did not care about how indian villagers solved their disputes, they did set up their courts, but most of the time the villagers preferred to go to the Panchayat.
Let me give you an overview of how Panchayat system worked. A Panchayat literally means an assembly of five elders chosen and accepted by the village. If anyone in the village had a dispute they can call the Panchayat, and pick out a mutually agreed “Surpanch”(Head of the five). This Surpanch would then question and listen to both the sides and give a solution. If either parties refuse to agree with the judgment or comply with it, they were ostracized by the whole village.
Make no mistake that this was a perfect system, or that it worked because it occurred in a different era with a different kind of people. It occurred right here in India, among the same kind of people. There was a bit of politics, people made their own groups. But the main question is, people got their justice really fast as compared to the current legal system.
But the main thing is the system worked, until it was totally ruined by the Indian govt by making it an extension of the government. Panchayats are so famous in Indian villages that “Panchayati Raj” is an election slogan, and you know it if politicians are promising it, it HAS to be famous among people.
A very good snapshot into the lives of Panchayats(especially before independence) was captured by the legendary Hindi novelist Munshi Premchand in his novel Panch Parmeshwar(पंच परमेश्वर). Its about a story of two friends who are respectively picked up as a Surpanch(सरपंच) in cases against each other, and they contrary to what you may believe do not always give decisions for each other.
You can read the novel(in Hindi) here:
http://lti1.wordpress.com/2008/11/04/पंच-परमेश्वर-प्रेमचंद/
I wish I could put an English translation of the novel, I tried, but could not find an English translation of the novel.
I really like this line from the novel:
पंच के पद पर बैठ कर न कोई किसी का दोस्त है, न दुश्मन। न्याय के सिवा उसे और कुछ नहीं सूझता। आज मुझे विश्वास हो गया कि पंच की जबान से खुदा बोलता है।
Translation: When someone sits on the seat of the Panch(the 3rd party arbitrator), he is neither a friend nor an enemy of anyone. He cannot think of anything but justice. Today I have come to believe that God himself speaks from the tongue of the Panch(the 3rd party arbitrator).
In addition to that Rajnikant’s movie Bulandi also demonstrates a third party arbitration system where Shakti Kapoor rapes a girl, and he is punished to be ostracized by the whole village for 18 years, and be married to the girl he raped.
A detailed analysis of the Panchayati Raj System and Gram Swaraj as supported by Gandhi has been covered earlier by Unpretentious Diva at:
The prospects of a private judicial system..
Its clear that India is no alien to the concept of private judiciary. Considering that now we have a much more matured market, its not difficult to imagine private companies in India handling justice system.
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hmemcpy Says:
April 20th, 2009 at 8:34 pmWhat are the premises of assuming that the panchayat system worked? The article seems to be missing the arguments to support this fact.
Some questions worth considering are:
1. What panchayat delivered was justice or compromise.
2. What was the compostion of the panchayat. Composition in terms of caste, religion, social status.
3. What was the position of women in those panchayats. Were they having enough involvement in the process.
4. Was there any scope for a person to live in the society who defies the
social norms of that particular panchayat governed area and chooses to live a life of his own.
5. Wasn’t the outcome of the panchayat on any dispute highly dependent on the morality of sarpanch and panch.
renegade_division Says:
April 21st, 2009 at 12:26 am@hmemcpy Said:
What is the difference? Lets see in a civil case where two people are having a non-criminal dispute, like over property, land, divorce its obvious that justice and compromise are the same.
In a criminal case, again what would you call as justice?
If a rapist agrees to pay Rs 5 Crore to the rape victim, and rape victim agrees to it, is that justice or a compromise?
If a murderer pays for the rest of his life through his nose to the victim’s family instead of other way around when victim’s family pays to keep the murderer incarcerated. Is that justice or compromise?
If a thief pays back the property he stole with compensation back to the person from whom he stole, is that justice or compromise?
Panchayats traditionally excluded the people of the lower castes. We are talking about these Panchayats in times of great apartheid, so these kinds of things against lower castes is not unheard of. But in contemporary times, there is a huge shuffling in the societal structures, those people’s prejudices still remain, its very difficult to actually get away from them(despite of any govt law).
Other than the caste system the Panchayats included all segments of the society, like religions, social status, and this was the biggest reason why anyone would go to a Panchayat. It wasn’t a Hindus-only ordeal or Rich people only ordeal.
Women were/are included, though I am not sure if I have heard of a woman Surpanch, but that can be accredited to the backward times. But, a woman can as easily be a party in the third party arbitration as well as any man.
Sure its totally possible for a person to totally defy the judgment of a Panchayat, in which case everybody ostracized that particular individual. If that individual did not want to be ostracized he would usually comply with the judgment or else, that individual can choose to move out and live in some other part of the land.
Having such a person move out of the society was enough justice. In some cases these people lived in the jungle and formed their own bands of thugs who would then assault travelers.
These kinds of judgments were only applicable for a civil case where usually both the parties were well grounded and could not afford the losses made by not following the judgment.
In a criminal case, I believe again the same thing followed for the people who were a part of the society. Though I am myself not sure what would be done to an individual who comes from some other part of the country, and say raped a woman of that village. Considering now those kinds of things happen more.
The solution is definitely to have private prisons.
Exactly that’s why they can choose the Sarpanches. If both parties don’t agree on a Sarpanch then they usually bring someone else from another village, or someone totally random and unknown to both the parties.
asit Says:
April 21st, 2009 at 1:35 amI just used google translator to translate….
here goes the link
http://tinyurl.com/d9vewx
renegade_division Says:
April 21st, 2009 at 1:58 amYeah but its a horrible translation to be honest. If I got some time I will write an abridged version of the story. Or maybe some Premchand fan could do that.
hmemcpy Says:
April 21st, 2009 at 10:44 pmgood that you answered the questions instead of throwing counter questions at me without
.
answering the previous ones or using the
“if you can’t convince them, confuse them” approach
I disagree with some of your answers, but now this will only turn this discussion to a debate involving
egos.
I found the intent of the article as , private judiciary
system can be implemented india because this concept was here in form
of panchayats for a long time.
This was why i was expecting some strong arguments supporting that the panchayat system actually
worked well. And claims to support that if there were any errors in that system, they can be easily removed
in private judiciary system.
I also missed footnotes and references you used for writing the articles. Making us believe
the way you interpreted the facts instead of giving us the chance to look at possible alternative
interpretations.
Some claims like “There was a bit of politics, people made their own groups.” , “this was a perfect system”
“it was totally ruined by the Indian govt by making it an extension of the government.”
required more explanation like what facts or sources lead you to believe this.