Legal Systems as Cultural Rights: A Rights Based Approach to Traditional Legal Systems

Abstract

An anthropological category, evidence of plurality and more recently as a metaphor for the victimized fragments of India's national life: these have been the dominant approaches to understanding tribals both within social history and anthropology. The invocation of these categories highlight the systemic processes of subjugation, dispossession and usurpation that the communities have suffered both under the colonial rule and later as price for national development. But the categories themselves do not suggest a way of resolving the deference - development dichotomy? Should tribals be left alone? Or should the Indian state necessarily pursue national development even at the cost of dispossessing the tribals? To argue that both (i.e. deference and development) may triumph is to romanticize the issue. To argue one may triumph over the others is to privilege the developmental claims of the state over tribal rights. Is there any alternative way out?

This article addresses the nature of institutional processes that may be employed for resolving differences within the larger framework of the Indian Constitution. The constitutional polity of India, including tribal communities, has a fundamental right of access to justice. The precise nature of this fundamental right remains unclear, yet it is of critical importance. The extent to which tribes may be made effective partners in resolving the development-deference dichotomy will depend substantially on one's conception of the right of access to justice for tribal communities. This Article argues that the fundamental right of access to justice for tribal groups essentially implies a fundamental right to the customary legal systems of the tribal communities. This interpretation provides a possible alternative to the development-deference dichotomy partly because adjudication/negotiation, under this conception, must be conducted within the framework of a tribe's customary legal system. Secondly, it argues that the current conception of the fundamental right of access to justice is premised on a positivist framework of the court system and requiring tribes to participate in dispute resolution within these formal structures is to effectively deny them their fundamental right of access to justice. In this sense, the tribal communities' right of access to justice may be considered a subset of the fundamental right to conserve culture under Article 29(1) of the Indian Constitution. Finally, I argue that the constitutionality of recent legislation in the areas of plant variety protection, biodiversity rights, and traditional knowledge will depend on the extent to which the enactments incorporate a broad interpretation of this fundamental right of access to justice.

Keywords: tribals, Indian Constitution, fundamental right to culture, development, legal systems

JEL Classification: J71, K10, K41