The Nyaya Panchayat
This Blog is written by Raman Poonia from VGU School of Law, Vivekananda Global University, Jaipur. Edited by Pranoy Singhla.
In India, Nyaya Panchayats have existed since ancient times and played very important role in dispute resolution in villages. In Vedic age there were in existence of Panchayat republics. The Vedic Sabha and Samiti were having elected bodies including representative in character with voting rights to women. These institutions could probe into the conduct of kings, the misdeeds of the ministers and the abuse of power by the powerful. An ancient Indian republic was a state where the strong were just and weak secure. The Vedic king was the protector of the people i.e., Janaya, along with that the self-governing institutions of ancient India ran parallel in the villages. They were the backbone of the true Indian democracy.
The Nyaya Panchayat was an informal and indigenous form of adjudication, where there was informal hearing, no legal representation, examination of witnesses and judgement pronounced in open court. The term Panchayat literally means council of five. The principle underlying Panchayat is “Panch Parmeshwar” which means God speaking through five. Ensuring a corporate life and being the pivot of administration and real centre of social life, the institutions occupied a prestigious position. The village communities have been described as little republics, almost free from external dependency. In the view of Will Durant, who is an American thinker “the village community in ancient India – the Panchayat and democracy that have ever been evolved in various parts of the world.” Democracy, which derives its strength from the people, needs their meaningful participation in local governance to make society vibrant and the country prosperous and strong. The passage of the Constitution (73rd Amendment) Act, 1992 marks a new era in the federal democratic set up of the country and provides Constitutional status to the Panchayati Raj Institutions (PRIs). Consequent upon the enactment of the Act, almost all the States/UTs, except J&K, National Capital Territory (NCT) Delhi and Arunachal Pradesh have enacted their legislations. Except Assam, Arunachal Pradesh, Bihar, NCT Delhi and Pondicherry, all other States/UTs have held elections. As a result 2, 27,698 Panchayats at village level, 5,906 Panchayats at intermediate level and 474 Panchayats at district level have been constituted in the country. These Panchayats are being manned by about 34 lakh elected representatives of Panchayats at all levels. This is the broadest representative base that exists in any country of the world – developed or underdeveloped. In India, majority of the population lives in villages. Today, Panchayats are the bedrock of India’s rural development and poverty alleviation efforts. It has the potential of building a progressive India in harmony with the felt needs and the aspirations of the people. Generally disputes among villagers are of small in nature, which can be decided easily in practical way of settling disputes that is free from the technicalities involved in urban court process. Recently two additional ADR forums originated with main purpose is to access to justice. First, the modem Nyaya Panchayats have been in existence in accordance with traditional village customs as well as post-independence state legislation. There have been several recent suggestions for its implementation on a national scale. Second, the Lok Adalats, have been utilized informally in the past, but has recently received statutory status on the national level.
There are certain aspects of Nyaya Panchayats that reflect their need in the Indian legal system. Nyaya Panchayats provide comparatively easy access to justice as they function at the basic level of villages and districts. It is easier for the aggrieved person to approach a Nyaya Panchayat than a Court. Nyaya Panchayats help in cutting costs as they eliminate the complainant’s need to spend exorbitant amounts of money to attain justice. Nyaya Panchayats reduce the burden on the civil courts. The disposal rate of cases at Nyaya Panchayat is higher than the usual courts as it includes no tardy procedures of the court. It is a hybrid representation of the panchayat system and the judiciary. In a country like India, where most of the population resides in rural areas, it is imperative for an effective judicial system to be easily available as not every citizen can afford to approach the urban courts.
Access to justice for the poor and marginalized remains a perennial problem in India. Various measures such as simplifying procedural laws, establishing alternate dispute redressal mechanisms, setting up fast track courts and providing free legal aid to the poor are undertaken in this regard. Despite these measures, access to justice and faster, inexpensive settlement of disputes at the grass-roots level are yet to materialize.
Gram Nyayalayas can greatly help in:
• devolving justice delivery to the fourth tier
• ensuring equal access to justice
• reducing the burden of district courts
• delivering speedier justice
• reducing the costs associated with litigation for the common man
• reducing dependency on extra-constitutional forums of justice
The Nyaya Panchayats are created with an aim to dispose of the cases as quickly as possible by eliminating delays and other technical issues. As a result, the functioning of the Nyaya Panchayats is not as complex as that of other judicial institutions. In Nyaya Panchayats, procedural codes are put into use, however, they have the authority to call witnesses and parties for the purpose of recording evidence or to produce any relevant fact or document. The Nyaya Panchayat also has the power to carry out local enquiries within its jurisdiction and produce a report as per the order of the magistrate. It may pass ex-parte judgements and even dismiss complaints if it is satisfied that a prima facie case is not in question against the defendant.
Nyaya Panchyatas have not functioned efficiently in the past. The failures are due to a number of factors, such as inadequate financial support: ambivalence towards providing even the minimum facilities for performing adjudicatory tasks, poor training of the lay judges; extremely limited jurisdiction [including petty criminal and pecuniary limited civil] which was concurrent with that of the regular court system; a lack of sufficient sentencing and enforcement powers; long delays in reaching decisions; social and political inequality due to the fact that the judges were not compensated and therefore were more likely to come from the landed elite classes; caste and communal factionalism because of the use of the elective principle in selecting judges; the lack of broad local leadership and popular support; and ideological ambiguities regarding the rationalizations for the Nyaya Panchayats which have resulted in the indeterminacy of the statues of both, the Nyaya Panchayats and their judges. But The LC Report advocates for the establishments’ of Nyaya Panchayats (which it calls “Grama Nyayalayas” to differentiate them from the ineffective Nyaya Panchayats of the past), based on notions of participatory justice at the gross-roots level in the village. These Nyaya Panchayats would operate from their adequately financed headquarters at the tehsil level; and, as far as possible, would dispense justice at the site of the disputes, at the doorsteps of the people. Each Nyaya Panchayats would be composed of one presiding judge who is legally trained and appointed as a member of the subordinate judiciary, and two lay judges who have certain “suggested” minimum qualifications, such as literacy and a higher secondary school education level. The lay judges would be chosen by presiding judge from a panel selected by the District Magistrate and the District and Sessions judges and approved by the Chief Justices of the state’s High court. The lay judges would bring a commonsense approach and knowledge of local customs, traditions and behavioral patterns to the Nyaya Panchayats. The lay judges would attend training sessions. The ECLA Report recommends the use of an entire lay penal of judges with a secretary trained in law available for the Nyaya Panchayats consultations
Several committees and commissions have closely scrutinized the Panchayat’s justice system and have recommended for its retention and revitalization on the all India level. Because ofthe increasing attention surrounding the Panchayat’s movement and the pressing need for judicial reform, the recommendations of some of these groups warrants further discussion. The most modem and most extensive ofthese, the Law Commission of India’s “114th Report on Gram Nyayatayats” (August 1986, chaired by justice D. A. Desai, hereinafter “LC Report”). The recommendations of the report of the expert committee on Legal Aid, Procedural Justice to the people” May 1973, chaired by justice Krishna Iyer (hereinafter “ECLA Report”), which for the most part are congruous with the recommendations of the LC Report The Constitution of India supports the introduction of democracy at the grass root level. Article 40 directs that the State to take steps to organize village Panchayats and provide with them such powers and authority as may be essential to enable them to function as units of self-govt. Number of States have enacted laws for organization and proper functioning of Panchayats. Nevertheless these Panchayats were not functioning up to the mark due to irregular and uncertain election. In order to imbue with new life and vitality the Panchayati Raj institutions, Part IX was added to the Constitution by Constitution Amendment Act, 1992 popularly known as Panchayats Raj Amendment Act.
Now, however, the 73rd Constitutional amendment has provided Constitutional sanction to democracy at the gross root level. The present amendment envisages Gram Sabha as the foundation of this system and provides for a three tier of Panchayat Raj system at the village, intermediate and district level. Gram Sabha is a body comprising of all persons of a village registered as voters. Small States with population of less than 20 lakhs may not constitute Panchayats at intermediate level. The amendment makes certain their regular elections after every five years and also provides for reservation of seats to members of Scheduled Castes and Scheduled Tribes and women in the Panchayati Raj bodies. The Panchayats have been given financial and administrative powers and whereas their establishment and devolution of essential powers and authority of the Panchayat are conferred in the State Govt. After coming into force of Panchayati Raj Act on 23rd March 1994 nearly 50 to 60% of the States and Union Territories have either amended their old Panchayati Raj Acts or have enacted new legislations. Recently in Karnataka the Government with view to give more power to Panchayats has introduced an amendment bill. The said amendment to the Panchayat Raj Act virtually puts MLAs in the driver’s seat in respect of the selection of any beneficiary for any scheme. Currently the grama sabhas are the deciding body in this regard and the only platform we have that recognizes true participation for every citizen to participate in decision-making. This amendment revokes this right. The message is loud and clear: people are now being held to ransom by their MLAs, who want to usurp virtually all powers, including those given to constitutionally mandate local bodies.
Nyaya Panchayats aims to promote the Article 39 A of the Constitution. The Preambular emphasis of the Nyaya Panchayat Bill, 2009 that “Article 39A of the Constitution mandates that the opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities in the administration of justice” is well placed. In State of U.P. and others Vs. Pradhan Sangh Kshettra Samiti and others, AIR 1995 S.C. While examining the legal and constitutional validity of the UP Panchayat Raj Act, 1947 that provides for the constitution of Nyaya Panchayats in the State the following observations of the Supreme Court merits attention: “The last contention of the respondents was that the Act makes provision for the Nyaya panchayats whereas the amended provisions of the Constitution do not direct the organization of such panchayats and, therefore, the Act is ultra vires the Constitution. The contention is only to be stated to be rejected. Admittedly the basis of the organization of the Nyaya panchayats under the Act is different from the basis of the organization of the gram panchayats, and the functions of the two also differ. The Nyaya panchayats are in addition to the gram panchayats. The Constitution does not prohibit the establishment of Nyaya panchayats. On the other hand, the organization of the Nyaya panchayats will be in promotion of the directive principles contained in Article 39-A of the Constitution.” The above decision of the Supreme Court affirms what has been stated at the outset in this work. Panchayats need to be seen afresh in the light of the mandate to promote Justice ‘in all possible ways’ under Article 39A of the Constitution of India. As pointed out above, Law Commission of India in its 114th Report in 1986 had remarked that “The Constitution now commands us to remove impediments to access to justice in a systematic manner. All agencies of the Government are now under a fundamental obligation to enhance access to justice. Article 40 which directs the State to take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government, has to be appreciated afresh in the light of the mandate of the new article 39A.” The Nyaya Panchayat Bill 2009 responds to this constitutional mandate while seeking to bring justice to the door of the rural folks by establishing Nyaya Panchayats at the Village Panchayat level.
The question as to whether conferring of judicial power on elected panchas is constitutional has also been judicially answered in the affirmative. In Kishna Kumar Mishra Vs. State, AIR 1996, the Patna High Court while deciding the question relating to validity of Constitution of Gram Kutchery (Village Court) by way of election thus held-“So far as appointment of members of Gram Kutchery by way of election is concerned, I find no illegality in the same. It is for the Legislature to decide as to what will be the mode of appointment. If the election is made one of the mode of appointment, that will not render the provision as unconstitutional” Likewise, the Punjab and Haryana High Court, posed with exactly the same questions as to decide the validity and constitutionality of the provision of elective judiciary as contained in Punjab Gram Panchayat Act, 1952 in Gurdial Singh Vs. The State, AIR 1957 as also to decide on the contention raised with respect to separation of executive from judiciary as enshrined in Article 50 of the Constitution of India, held that “The validity of the Punjab Gram Panchayat Act cannot be challenged on the ground that it has sanctioned the appointment of an elective judiciary and has thereby contravened the provisions of the Constitution. It is true that the method of the recruitment of judicial officers like judges of the Supreme Court, Judges of High Courts & District & Subordinate Judges has been set out in the appropriate Articles of the Constitution, but items 3 and 5 of the List II (State Legislative List) confers ample power on the State Legislature to provide for administration of justice, constitution and organization of Courts and the constitution of local authorities for purposes of local self Government or village administration.
Even the High Court laid down that absence of any criteria for determining the qualifications of panchas exercising judicial functions would not contravene the provisions of the Constitution, it is also relevant to note that the Supreme Court in the All India Judges’ Association v. Union of India case prescribed three years’ practice as a lawyer as essential qualification for recruitment of Judicial Officers at the lower rung.
Village administration including administration of justice by Panchayats is probably as old as village themselves. Rural reconstruction can be achieved through changing the mindset of the rural people, particularly that of the marginalized sections. They should not consider themselves merely as a cog in wheel, but as the cornerstone of the governing system. This could only happen when they become participators in decentralized governance, planning, awareness of existence of laws and development. Governance from grass root level gives much scope for development, but lack of awareness among the poor, manipulation and exploitation of the masses by the local elite are blocking the benefits of development from reaching to the neediest rural people. The challenge of governance in India today is to democratise the processes and structures of public decision-making for mobilisation and use of public resources for the common public good. The challenge for ‘governance’ in India, in practice, is to move towards a new set of standards. From an elite-led model (as demonstrated by the IAS and other echelons of decision making) to a mass base approach is quite a shift: a shift from an emphasis on national coherence to local relevance and initiatives, from a system of one-way accountability to the state to a process of mutual accountability to citizens, this requires a total culture shift in Indian governance. Such a shift, difficult and contentious as it may be, is the needed direction to move ‘governance to where people matter’ in India. Effective rules or laws are essential whatever the degree of decentralization of government. Therefore, decentralization must be accompanied by more efficient organization of the primary institutions that make, interpret and enforce laws. Of these, the judicial system may be the immediate place to start. Given a smoothly operating and independent judiciary, democracy – which gives constituents the ability to replace their representatives routinely and easily will be more effective than if it is only a revolving door for opportunism. Accountability requires the law and democracy to work together. The advantages of Nyaya Panchayats system as outlined in the various reports discussed above, are many, and such a system would greatly facilitate increased access to justice for all, including those previously denied effective access. The Nyaya Panchayats system would ensure public participation in the administration of justice. The Nyaya Panchayats would instill confidence and help to alleviate litigants’ apprehensions regarding the judicial systems because of their informal atmosphere, conciliatory approach, use of local languages and lack of procedural and evidentiary technicalities, because the adjudication of the Nyaya Panchayats would be based in part of the local custom and tradition, many of the defects and inadequate of the ill-suited British judicial system would be eradicated.
The Preamble to the Gram Nyayalayas Act envisions access to justice to the citizens at their doorstep and to ensure that opportunities for securing justice are not denied to any citizen. Despite the many challenges and shortcomings of the existing framework of the Village Courts in India, they have a positive role in providing access to justice to the poor and reaching out to marginalized sections of the society. It has the potential to reduce the pendency of cases at higher levels. However, to achieve the stated objectives, efforts must be made to revamp the organizational and jurisdictional aspects of Gram Nyayalayas.
Recommendations can be made about the rationalization for the Nyaya Panchayats system, such as, Firstly, the nation of the Nyaya Panchayat as a revitalization of traditional village life must be abandoned. In practice, given the highly stratified and culturally divergent character of Indian society, a nation-wide scheme imposed on the villages from above which is not created and organized by each village according to its particular customs and exigencies, is bound to fail in achieving its objective of recreating traditional village life. Secondly, the mere extension of the regular court system to the village level, without a corresponding simplification of procedure and change in judicial approach (from adversarial to inquisitional) would be inadequate. Although possibly reducing the caseload of the higher courts, it would still leave many people without access to justice because of the expenses, fears, etc., surrounding the regular court system. The only cohesive and realistically effective rationale for the implementation of a Panchayati system of justice is that of increasing access of justice for all the citizens of India. By formulating and implementing an all-India level plan for Nyaya Panchayats based on the particularly model of justice (utilizing either nominated or elected lay judges) with simplified procedures and the utilization of a non-adversarial, inquisitorial judicial approach, exclusive and sufficient jurisdiction and adequate funding, access to inexpensive and effective justice would be greatly facilitated. However, certain safeguards must be implemented to assure that the landed elite classes do not dominate the Nyaya Panchayats Ifthe elective to run in the election should be implemented, including no criminal record, no communal or casteist background, income and property limits, and the reservation of positions for women, scheduled tribes and castes. If the nominative method a utilized, then similar qualifications should be set for eligibility for nomination. If the Nyaya Panchayats system were implemented in this way, many of the shortcomings of the past ineffective Nyaya Panchayats would be safeguarded.
(1) K.Raina, Working ofPanchayati Adalats, A Case Study, Cochin University Law Review, p. 33.
(2) EJJRapson, Cambridge History ofIndia, (1935) p, 177.
(3) As quoted in S.R.Nigam, Local Govt. England, France, U.S.A., U.S.S.R and India (1978) p.216
(4) Developed by ASCOSYS, Guwahati, C P & RD Directorate ofAssam
(5) The Lawyers, January, 1990, P.6.
(6) Lawyers, January, 1990, P.8
(7) Nandana Reddy and Damodar Acharya, A Mortal Blow to Panchayat Raj. indian seminar.com
(8) Mathur S.N., Nyaya Panchayats As Instruments Of Justice, 1st ed. (1997), p. 44