Author(s): Marc Galanter
Source: Asian Survey, Vol. 3, No. 11, (Nov., 1963), pp. 544-559 Published by: University of California Press
Stable URL: http://www.jstor.org/stable/3023430
Accessed: 19/05/2008 17:14
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L AW AND CASTE IN MODERN INDIA
M ARC GALANTER
W hile there i s i n m odern I ndia n o s ingle nation-wide system o f caste, t here i s what m ight b e called a n a ll-India legal culture. T his essay i s c oncerned with " caste" a s a n aspect o f t his culture. I t d escribes t he w ays i n which the legal system recognizes a nd r egulates caste and i t suggests the ways i n which these legal conceptions a nd r ules may influence caste as a n institution. The legal culture h as m any levels; t he developments described here a re a t t he h igher a nd m ore authoritative levels. Description o f t he development a nd a pplication o f doctrine b y legislatures a nd h igher courts is n ot i ntended t o imply a ny one· to-one relation between the pronouncements of these h igher a uthorities and t he day-to-day operations o f magistrates, officials, a nd lawyers, a nd m uch less the lay public. I n t he l ong r un, however, t he h igher c ourts' pronouncements not o nly t end to reflect w hat t he police a nd m agistrates a re d oing b ut a re uniquely influential; first, b y d isseminating "official" conceptions of caste which have a n i mpact ( )nthe caste system; a nd second, b y p ersistently deflecting behavior toward conformity with t he doctrines they promulgate. I n o rder to provide a background against which the relation o f law and caste i n post-Independence I ndia c an be appreciated, it is necessary to sketch roughly t heir r elation i n the l atter p art of the British period. The period from t he f ounding o f t he modern legal system, which can be dated a round 1880, to t he b eginning o f t he attempts a t extensive statutory modification o f caste i n t he 1 930's will b e used a s a base line. Against this background, new developments i n the legal attitude toward caste, which a re p art o f t he attempt to transform I ndian society b y law will be discussed, i n p articular, t he s tatus o f caste u nder the 1 950 Constitution w ill be examined.
The legal view o f caste may be considered u nder t hree general headings which, although they overlap a t times, classify the subject conveniently. They a re ( 1) p ersonal l aw; ( 2) caste autonomy; ( 3) precedence a nd disabilities.
Personal Law: " Personal l aw" r efers to caste as i t determines the legal rights a nd o bligations o f p ersons - i.e., instances i n which the rule of law a pplicable to a p articular p erson is determined b y t he identity of t he caste group to which he belongs.
U nder t he legal system which the British established i n I ndia a ll persons i n...