Kerala, the South Indian state run by socialists that has been able to flatten the curve of coronavirus transmission, has garnered much attention. But much less has been said about the role of panchayats, a system of justice practiced in rural communities, in controlling the virus’ spread.
The panchayat system is the world’s largest body of local self-governance with more than three million elected representatives, one third of whom are women. It guides legal proceedings and proclaims judgment based on the customs of the village, is used as a link between the state and rural communities to address specific local concerns.
The formalization of the panchayat system in India did not begin until the 1970s. The model was developed with the victim-rights movements that expressed deep dissatisfaction with the penal system’s understanding of justice.
The panchayat process allows the victim, offender, and the rest of the community to engage in an inclusive discussion about the offender’s punishment and the compensation owed to the victim. In such close quarters, conflict resolution must be swift and decisive, there is no room for prolonged theatrics and debate, as time is better spent on fruitful activities like food production. This makes it an effective mechanism of both justice and administration.
This has allowed initiatives such as sanitary-waste facilities and welfare policies to be guided by the needs of these minority groups. These projects are state-funded, making them a catalyst for rural development and protection.
Panchayats were used in Kerala as a local authority and structure for the distribution of supplies, information and to garner support for the anti-COVID-19 campaign. The system was already in a robust and functioning form and had only to be re-oriented and resourced to address the challenges of the coronavirus lockdown with curfews and restricted movement. Before the pandemic, Kerala’s panchayats were the caregivers of the old, weak and marginalized people within society.
The state government allocates a flexible fund, one third of their budget, which they have maintained even through this crisis. The money is used by the panchayat system to support projects like the Ashraya feeding programmes and free care centres for the mentally and physically disabled.
These existing structures made the transition to caring for those impacted by COVID-19 much easier. Many states in India have opted for the bureaucratic approach, leaving these under-represented rural groups vulnerable and under-utilized in the fight against the pandemic.
In many states, the pandemic has created a vacuum of governance, with local authorities functioning with only a skeletal of administration. But where it exists, the panchayat system has stepped in to fill this gap. It would be impossible to impose lockdown effectively without the support of this decentralized, democratic system.
As with alternative and restorative justice systems elsewhere in the world, the panchayat system sometimes clashes with formal institutions that allow for appeals on their judgments. The system faces a fundamental conflict of justice: should individuals be governed by the laws of their community, or those based on a majoritarian acceptance of right and wrong?
The criminal code of India recognizes both domestic violence and rape as crimes, but many rural communities do not identify them as acts of harm. If a village woman receives such a judgment from her panchayat she can appeal to a state court to reverse the judgment. The appeal system offers a measure of protection in a case like this but can also undermine the local process.
The panchayat system in India is not supported by central authorities who restrict it to remote areas outside the immediate reach of state institutions, placing it on the far periphery of the justice system.
On the importance of releasing prisoners
Most Indians do not have access to restorative justice. This is evidenced by the fact that in 2019, India had 450,000 prisoners, exceeding national capacity by 17 percent. These cramped and unsanitary facilities serve as a breeding ground for disease, placing inmates and staff at risk. The rapid spread of the virus in India’s notoriously overcrowded prisons has prompted the Supreme Court of India to order prison facilities to release pre-trial detainees on parole.
Mian Qayoon is a 73-year-old human rights lawyer from northern India and President of Kashmir’s High Court Bar Association. He was detained during the Indian national government’s revocation of Jammu and Kashmir’s semi-autonomy in August of 2019. He is currently detained in Delhi’s Tihar Prison under the Indian Public Safety Act (1978), which allows the state to imprison any individual that they believe poses a threat to national security.
Qayoon could be held for up to two years without a trial. Seen as a move to suppress legal challenges to Jammu and Kashmir’s self-rule, opposition to his detention has come from international bodies, including the Law Society of England and Wales.
Since April 2020, Qayoon’s family has petitioned the government for his release on parole due to his increased susceptibility of contracting COVID-19, because of his age and declining health. The Indian government replied that release was not covered in the guidelines issued by the central government, despite the risks it poses for this prisoner. His nephew and lawyer Mian Muzaffar stated: “It’s a death sentence to keep him inside India’s most notorious and one of the most crowded jails in these times.”
To date, Qayoon has not been found guilty of any charges and has remained in jail during the coronavirus pandemic, which poses a significant risk to his life. The questions of human rights can no longer remain ‘superfluous’ in the face of the law. The solution is not a complex mystery, but rather a matter of incorporating elements of alternative forms of justice.
While the panchayat system has its limitations, the efficiency and necessity of the system in a population of 1.3 billion people is nonetheless apparent. It could certainly make a difference for people like Qayoon.
The depopulation of prisons is a short-term solution that highlights the critical urgency of a long-term shift in our criminal justice system. Since 2010 India has seen a rise in crime with dangerously escalating standards of punishment.
As reported by Human Rights Watch, the rising rate of crimes against women and ethnic minorities makes the need for a social interpretation of criminal behavior glaringly obvious.
The increasing measures of punishment have made India’s mainstream criminal justice system one of institutionalized vengeance with the effectiveness of a band-aid on a gaping wound. With nearly 30 million criminal cases pending and 10 million additional cases every year, the inefficiency of the judicial system is apparent.
Though with incredible difficulty and at the cost of many lives, the pandemic offers us the opportunity to re-imagine the world with a better understanding of justice. The panchayat system has already proven useful in reducing transmission of the coronavirus, and it could offer a path towards restorative justice for all Indians.
This article is the second produced in collaboration between Toward Freedom and the Symbiosis School for Liberal Arts in Pune, Maharashtra, India. For more information, contact Barry Rodrigue <email@example.com> at Symbiosis International University.
Prakriti Sharma is a recent honours graduate of the Symbiosis School for Liberal Arts with a major in Psychology and a double minor in Law and Economics. This article was inspired by her undergraduate thesis.