The Indian Approach to Criminal Justice: The Role of Traditional Courts as Alternative Dispute Resolution Mechanisms

Abstract

South Africa and India both struggle with a high crime rate and case backlogs in the mainstream courts. Both countries have a pluralistic system where state law consists of formal law and customary law. Both have mainstream and traditional courts following dispute resolution based on traditional values and principles. The panchayat system in India is comparable to traditional authorities in South Africa. The panchayat system performs judicial-like functions, and traditional courts operate at informal (nyaya panchayat) and formal (gram nyayalayas) levels in the rural areas. The lok adalat system is an alternative dispute resolution mechanism employed by the Indian government to address the high crime rate and court backlogs. Statistics reveal that these alternative justice mechanisms based on traditional values and principles have successfully cleared some backlogs. South Africa is in the process of adopting legislation on traditional courts, and it is envisaged that the Traditional Courts Bill [B1-2017] will soon be transformed into law. In reconsidering traditional courts’ role in the South African criminal justice system, it is worthwhile to explore what the Indian government has been doing in this regard. The main aim is to analyse the Indian approach to criminal justice regarding dispute resolution examples based on traditional laws, namely the panchayat system (nyaya panchayats and gram nyayalayas) and also lok adalats in a comparative context.

The struggle within dual systems of government: dealing with conflict between traditional leaders and ward councilors in the greater Giyani Municipality in South Africa

“…This is why despite existing CRFs, numerous conflicts continue to recur and re-escalate. Although dealing with conflicts is generally complex, addressing conflicts between traditional and elected leaders is even more difficult than conflicts among community members (Rautenbach, 2014;Reddy, 2018). This complexity is further amplified by the emergence of a dual system of governance in local municipalities, which adds another layer to the nature of conflicts common among them (Waindim, 2019).…”

“…Equally important to highlight is the fact that despite the general acknowledgment that the existing literature on conflict resolution (CR) offers many useful frameworks for ending conflicts and that traditional authorities continue to play a vital role in resolving conflicts (Fitzsimmons, 2006;Rukuni et al, 2012), there has been no consensus or clear-cut formula for selecting a framework that can resolve conflicts amicably in dual systems of governance (Rautenbach, 2014;Reddy, 2018). Amicable resolution of conflict not only ensures the ending of the conflict but also ensures that the process remains fair and balanced.…”

“…Amicable resolution of conflict not only ensures the ending of the conflict but also ensures that the process remains fair and balanced. In some cases, these frameworks have become instruments of propagating individual interest (Rautenbach, 2014;Adebayo and Oriola, 2016). In fact, with the existing frameworks failing to cope with the diverse conflicts, conflict continues to re-escalate every day.…”

“…Studies by Cunningham (1996), Fashagba andOshewolo (2014), andRautenbach (2014) suggest that discourses and public opinion have focused on ending conflict without delving into strategies for building and sustaining peace leaving the conflicts susceptible to regenerating into another conflict. Recently the need to promote social cohesion has gained prominence.…”

“…The endogenous CR models remain relevant not exclusively to South Africa but in other traditional societies of Africa, Asia, and Australia (Osuchukwu and Udeze, 2015;Alemie and Mandefro, 2018). For example, besides the modern courts, TCs and councils of churches were formed to collaboratively address conflicts in most rural areas of South Africa (Rautenbach, 2014;Reddy, 2018). Ideally, TCs are intended to resolve local disputes through arbitration, but the CoCs are a neo-traditional body superficially created to assist in addressing religious matters and conflicts among community leaders (Cunningham, 1996;Fisher and Rucki, 2016).…”