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Gram Nyayalaya Act, 2008; consorious analyein

INTRODUCTION

The Gram Nyaylaya is the latest in the reforms of the Indian Judiciary. Fast Track Courts and Lok Adalats have been introduced to address the monumental backlog of cases in the Judiciary. Family Courts were introduced in 1984 also espouses speedy disposal, sensitive approach and relaxation of strict rules of evidence and procedure. The Gram Nyaylaya seems to be combination of the objectives of several special courts in contrast to the regular emphasis on the adversarial trial. The Gram Nyayalaya may inspire confidence in the village community, it is imperative that a legally trained mind preside over the body. And to avoid a purely technical legalistic approach, two other persons who are village level workers and who are educated and socially oriented should be inducted.

Equality and justice are indisputably two key facets of the idea of a modern, democratic and constitution-adhering India. The principles of equality and justice are realised by the State apparatus through the business of administration of justice. India's  justice system is characterised by systemic problems, including corruption, delays, pendency, increasing costs, limited legal aid, and a lack of appropriately trained lawyers and judges. When confronted with the many problems of the legal system, the government's response has been not to invest in and fix a broken system, instead it has responded by moving out of the  adversarial system with its procedural guarantees, those who have the least voice and use it minimally – Indian citizens, who live in rural areas, with small claims, both civil and criminal in nature. The government does this with the passage of the Gram Nyayalayas Act, 2008. This Act perpetuates the phenomenon of two Indias – that of the better resourced urban citizen who can afford and has access to the courts. And, the other India of the impoverished – the more  disconnected rural citizen, who gets primary access to forums that focus primarily on disposing of their claims, minus the application of essential safeguards of the legal process – lawyers, appeals, procedural protections and evidentiary requirements. The Act provides for the establishment of nearly 5,067 Gram Nyayalayas or village courts across the country. The avowed Objective is to provide access to justice to the citizens and to ensure that opportunities for securiing justice are not denied to any citizen by reason of social, economic or other disabilities. In his address on the eve of the National Law Day, the Chief Justice of India underscored the importance of this initiative as he asserted that his would bring the justice delivery system closer to rural citizens. Since a small number of Gram Nyayalayas have become operational from 2 October 2009, information on the implementation of these "village courts" is not available

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The Gram Nyayalaya is the latest in the reforms in the structure of the Indian judiciary. The state introduced Fast track Courts and Lok Adalats to address the monumental backlog of cases in the judiciary. Family Courts instituted since 1984 also espouses speedy disposal, sensitive approach and relaxation of strict rules of evidence and procedure. The Gram Nyayalaya seems to be a combination of the objectives of several special courts in contrast to the regular emphasis on the adversarial trial.

The Gram Nyayalaya as a different court was proposed by the 114th Law Commission way back in 1986. The report recommended the concept of the Gram Nyayalaya with two objectives. While addressing the pendency in the subordinate courts was the major objective, the other objective was the introduction of a participatory forum of justice. To make it participatory the Law Commission recommended that the Magistrate be accompanied by two lay persons who shall act as Judges, that the legal training of the Magistrate will be complemented by the knowledge of the lay persons who would bring in the much required socio-economic dimension to adjudication. It was proposed that such a model of adjudication will be best suited for rural litigation. The Law Commission also observed that such a court would be ideally suited for the villages as the nature of disputes coming before such a court would be ‘simple, uncomplicated and easy of solution' and that such disputes should not be enmeshed in procedural claptrap. The report suggests that such a litigation is expensive both for the state as well as the litigant. However the participatory aspect has been set aside in the current Act and we find the Gram Nyayalaya manned by the regular Judicial First Class Magistrate.

 

114TH LAW COMMISSION ON GRAM NYAYALAYAS

In distinction to the Nyaya Panchayats since it is dissimilar in more ways than one, and a couple of steps ahead of it, the appellation "Gram Panchayat" is suggested for the new model of justice dispensing forum.

The Gram Panchayat is to be a statutory village level court and its jurisdiction is not optional.

In order that the Gram Nyayalaya may inspire confidence in the village community, it is imperative that a legally trained mind preside over the body. And to avoid a purely technical legalistic approach, two other persons who are village level workers and who are educated and socially oriented should be inducted. The three should constitute the Gram Nyayalaya. It would not be too unwieldy and it would have all the advantages both of State courts' approach and participation of lay public in the administration of justice.

The Gram Nyayalaya should consist of a legally trained Judge belonging to the cadre of Judges to be specifically set up for this purpose. In order to select legally trained Judges for Gram Nyayalaya, the State shall form a Panchayati Raj cadre of Judges. They would ordinarily form part of the Subordinate Judiciary of the State. The Judge must have all those qualifications which he should have for being recruited as Munsif Magistrate or Civil Judge (Junior Division) and Judicial Magistrate, First Class.

As the Panchayati Raj Judge is to be drawn from the cadre of Munsif Magistrate/Civil Judge (Jr. Division), Judicial Magistrate First Class, for the time being the same method of selection will apply which, the Commission is informed, is that the selection is done by the State Public Service Commission in which a Judge nominated by the Chief Justice of the concerned High Court participated for the time being: the same method may be adopted. It is desirable that a Member of the State Judicial Service at the lowest level with three years experience should be selected for this cadre. The selection must be made by the High Court.

In the selection of the lay Judges, a Selection Committee of District Magistrate and District Judge of the concerned district should be constituted in each district for this purpose. To begin with, the District Magistrate and District Judge should separately draw up a panel up to a number far exceeding the minimum required. Thereafter, they must exchange their panels. A few days later, they must assemble, interact and finalise the panel. The panel of laymen should, as far as possible, be an agreed one, failing which the District Magistrate and the District and Sessions Judge may recommend their separate lists and also record their objections to the names suggested by the other members of the selection committee. The entire panel whether it is drawn up on consensus, or partly agreed or wholly separate, should be submitted to the Chief Justice of the High Court having jurisdiction. The Chief Justice, in consultation with two of his colleagues, shall finalise the panel. It would be open to him to call for additional information about the persons figuring in the panel on separate lists submitted by the members of the selection committee. The selection must be confined to the residents of the district. While preparing a panel a member of the selection body may have recourse to his subordinates to collect the antecedents of the proposed persons. The members of the selection body should have first-hand information as far as possible, through authentic sources enabling checking of the antecedents of the persons proposed by one member or by the other of the selection committee.

Adequate representation should be ensured to members of the weaker sections of the society, Scheduled Castes, Scheduled Tribes, women and backward classes. Panel members must represent the cross-section of the village community.

It is desirable that the lay Judges possess some educational qualifications. The safe middle course is to prescribe a graduate degree as a qualification failing which those who have obtained Higher Secondary School Examination Certificate would be eligible. Educational qualifications may be prescribed as a desirable, and not as minimum, qualification. In the matter of selection of persons from Scheduled Castes, Scheduled Tribes, backward communities and women, educational qualifications may be dispensed with if adequate number of persons with educational qualifications are not available. Persons to be selected should preferably be within the age group of 30-65.

Active political party workers, elite wealthy persons, rich and big farmers, high pay bracket service personnel and moneylenders must be excluded from consideration. So also persons convicted of an offence involving moral turpitude, economic offenders, undischarged insolvents and the like.

The lay Judges should be persons of character and integrity.

It is imperative that the Panchayat Raj Judges as also the members of the panel are imparted basic training in creating a new atmosphere in the forum where all formal technical approach must be eschewed. The Panchayati Raj Judges should assist in imparting information about the relevant point of law, social justice approach, non-formal disposal of causes and deprofessionalised atmosphere. Members of the panel should be imparted training in decision-making process free from prejudices of caste, community, colour, sex or religion. They must be acquainted with the fundamental approach to justice, namely, that the weak and less fortunate should not be the victims of class exploitation. The training may extend to a period of three months. A re-orientation course about the change in pattern of law, sociology of law, object and purpose behind justice system would be of immense assistance to the members of the proposed forum.

The training could comprise subjects like method of hearing cases, attempted conciliation and resolution of disputes by compromise and training in the decision-making process. The lay Judges in particular should be taught that they should conform to the principles of natural justice.

Panchayati Raj training centres have been started and they are located in different parts of the country. It is only necessary to expand these training centres and to provide adequate facility for training of the lay Judges.

The approach of the Gram Nyayalaya should be mediatory at the initial stages except in regular criminal proceedings where, save the compoundable offences, trial has to be held. Offence being an injury to society there is hardly any question of conciliation.

Nothing should be done to impair the relative equality among the three Judges composing the court. Therefore, while providing that it would be the primary duty of the Panchayati Raj Judges, who would be presiding over the Gram Nyayalaya to give effective guidance to the two lay Judges on questions of law, in the matter of decision, the majority view in the absence of an unanimous decision will be the decision of the court.

JURISDICTIONAL ASPECTS

The local geographical jurisdiction of a Gram Nyayalaya should be confined to the villages in a Taluka/Tehsil for which it is set up. If the number of disputes coming before the Gram Nyayalaya set up for a Taluka/ Tehsil is not sufficient to keep it engaged full-time, the State Government with the approval of the High Court may enlarge the jurisdiction of a Gram Nyayalaya to extend over more than one Tehsil.

A precise definition will have to be devised of a "village". The briefest definition that is considered appropriate is : "Village is a unit of administration for which no municipality is set up." That would accurately define the area to be brought with the territorial jurisdiction of the proposed Gram Nyayalaya.

The Commission is of the view that jurisdiction must be referable to the subject-matter of the dispute and not to its pecuniary value. Thus there shall be no ceiling in the matter of pecuniary jurisdiction of the Gram Nyayalaya.

The Commission would favour conferment of civil jurisdiction of Gram Nyayalaya in respect of disputes covered by the subject-matter herein delineated:

I.Civil Disputes : Disputes arising out of implementation of agrarian reform and allied statutes —

1. Tenancies — protected and concealed and contested.

2. Boundary disputes and encroachment.

3. Right to purchase.

4. Use of common pasture.

5. Entries in revenue records.

6. Regulation and timing of taking water from irrigation channel.

7. Disputes as to assessment.

II. Property Disputes :

1. Village and farm houses (possession).

2. Sobas.

3. Easements : Right of way for man, cart and cattle to fields and courtyards.

4. Water channels.

5. Right to draw water from a well or tubewell.

III. Family Disputes :

1. Marriage.

2. Divorce.

3. Custody of children.

4. Inheritance and succession — share in property.

5. Maintenance.

IV. Other Disputes :

1. Non-payment of wages and violation of Minimum Wages Act.

2. Money suits either arising from trade transaction or money lending.

3. Disputes arising out of partnership in cultivation of land.

4. Disputes as to use of forest produce by local inhabitants.

5. Complaints of harassment against local officials belonging to police, revenue, forest, medical and transport departments.

6. Disputes arising under the Bonded Labour System (Abolition) Act, 1976 and the Protection of Civil Rights Act, 1955.

The Gram Nyayalaya must have jurisdiction to try all offences which can be tried under the Code of Criminal Procedure, 1973, by the Judicial Magistrate First Class.

Though undoubtedly, the Family Courts Act, 1984 has been enacted and brought into operation, since custody of children has a distinct local flavour, the Gram Nyayalaya must have jurisdiction to deal with matrimonial disputes arising in rural areas.

The Gram Nyayalaya would be a body for administration of justice, and a legislation for the same would squarely fall under Entry 11-A of the Concurrent List.

PROCEDURE

An office called the "Gram Nyayalaya Karyalaya" must be set up at the headquarters of the Taluka or Tehsil. Ordinary requirements of staff, office, books, stationery, etc. must be provided at the office. The Presiding Judge must be available at this office. It must be a self-sustaining unit, and adequate funds must be provided for its effective functioning.

It is recommended that neither the Code of Civil Procedure nor the Evidence Act should apply to the proceedings of the Gram Nyayalaya.

A simple procedure has been recommended. A complaint, upon being filed, should be placed before the Presiding Judge within 24 hours. Interim prohibitory orders may be passed if the dispute brooks no delay, to be enforced within one week, within which the Nyayalaya must visit the site and, in the presence of both parties, determine whether the interim order should continue or not. For the final hearing, the Gram Nyayalaya shall ordinarily meet at the situs of the dispute. The rules of natural justice shall inform the proceedings. The proceedings shall be brief; all documents produced must be accepted and, if lawyers so think, they may make submissions for a period not exceeding a few minutes. If possible, the decision must be rendered there and then. The decision of the Nyayalaya will be governed by justice, equity and good conscience.

At the end of the trial, if the decision is not by consensus between the parties, the Presiding Judge shall draw a brief statement of the dispute, the evidence led, the decision and the reasons in support of the decision. It shall be signed by all the three Judges. In the event of a difference of opinion, the decision of the majority will be binding. On a question of law, the view expressed by the Presiding Judge shall be binding on the lay Judges.

If the Gram Nyayalaya finds that it has no jurisdiction, it may make over the case to the District Court having jurisdiction for transfer of the case to the Court having jurisdiction.

When the Presiding Judge has acquainted himself with the nature and the place of the dispute, he shall select from the panel already furnished to him two persons residing as far as possible from the situs of the dispute.

As a first step, it is advisable to retain the procedure prescribed in the Code of Criminal Procedure, 1973 for trial of offences before the Gram Nyayalaya.

An attempt, however, should be made to devise a still simpler procedure which may stand the test of Article 21 of the Constitution. The Evidence Act as such stricto sensu would not apply.

The parties appearing before the Gram Nyayalaya will be entitled to appear through lawyers of their desire both in civil and criminal proceedings. But the Gram Nyayalaya shall not adjourn the case, or change the venue, to accommodate the lawyer. The proposed National Legal Services Act should assign two lawyers to be attached to each Gram Nyayalaya who would be independent of party influence and who would assist as court officers in disposal of the disputes, and also would be readily available to the parties if they so desire.

The Gram Nyayalaya will have power to :

(a) enforce the attendance of any person and examine him on oath;

(b) compel the production of documents and material objects;

(c) issue commissions for the examination of witnesses or if the witness is unable to appear before it on account of physical incapacity; and

(d) do such other things as may be prescribed.

The proceedings before the Gram Nyayalaya shall be conducted in the State language permitting the dialect of the locality to be used. Records shall be maintained in the State language and copies shall be furnished to those who desire the same. The decision shall be, if not by consent of the parties, recorded in the language of the court.

No court fee shall be levied in the proceedings before the Gram Nyayalaya.

No appeal would lie against any decision of the Gram Nyayalaya except the one in which at the end of a criminal trial a substantive sentence is imposed. A revision petition would lie to the District Court of the district in which the Gram Nyayalaya is functioning. Only errors of law can be corrected by this revisional forum. Even if it comes to the decision that another view is possible, it would have no jurisdiction to interfere with the decision of the Gram Nyayalaya. A decision by peers should not be interfered with by a court presided over by a Judge considering the matter from a purely technical legal approach.

An appeal would lie to the Sessions Court against the decision by a Gram Nyayalaya in a criminal case in which a substantive sentence of imprisonment has been imposed. The appeal would be both on questions of fact and of law. The appeal should be dealt with according to the provisions of the Code of Criminal Procedure applicable to the appeals entertained against the decision of a Judicial Magistrate, First Class. Any other view is likely to infringe Article 21 of the Constitution.

The jurisdiction of the Gram Nyayalaya is exclusive to the extent that in respect of matters covered by the jurisdiction conferred on the Gram Nyayalaya, the jurisdiction of any other court is ousted; such jurisdiction is not optional.

A simple method for execution of its orders must be provided for. The nature of the execution would depend upon the relief granted by the decision of the Gram Nyayalaya. Depending upon the relief granted, the fruits must be made available forthwith or soon thereafter. No prayer for granting interim stay till the party aggrieved by the decision prefers a revision petition should be entertained.

All authorities — revenue, police, forest — operating at village and Tehsil level should be put under an obligation to assist the Gram Nyayalaya in discharging its functions and performing its duties. Failure on their part shall be treated as misconduct, and a Gram Nyayalaya should be empowered to take effective action against such defaulting authority.

For a uniform pattern of functioning of the Gram Nyayalayas, a simple code may have to be drawn up by the State Government in consultation with the High Court.

A liaison officer with a legal background should be appointed and attached to each Gram Nyayalaya. It shall be his duty to move around the villages regularly and as soon as he comes across violation of individual or group rights, on their behalf, take recourse to the court. A statutory provision shall be made not permitting hislocus standi to be questioned by the party against whom the action is commenced.

Every Gram Nyayalaya will be furnished with a copy of a list drawn up by the State Government of non-governmental voluntary organisations operating in rural areas. The Gram Nyayalaya may enlist their help in reconciliation proceedings before resorting to adjudication. The list may also be useful in selecting the panel of lay Judges. This will make the participatory process far more effective.

The treble objects behind devising this new forum for resolution of disputes at grass-root level is to provide a participatory system of justice; expeditious disposal of disputes; and justice taken to the doorstep of the people.[3]

GRAM NYAYALAYA ACT, 2008

SALIENT FEATURES

• Gram Nyayalayas are aimed at providing inexpensive justice to people in rural areas at their doorsteps;
• The Gram Nyayalayas shall be court of Judicial Magistrate of the first class and its presiding officer (Nyayadhikari) shall be appointed by the State Government in consultation with the High Court;
• The Gram Nyayalayas shall be established for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district or where there is no Panchayat at intermediate level in any State, for a group of contiguous Panchayats;
• The Nyayadhikaris who will preside over these Gram Nyayalayas are strictly judicial officers and will be drawing the same salary, deriving the same powers as First Class Magistrates working under High Courts;
• The Gram Nyayalaya shall be a "Mobile Court" and shall exercise the powers of both Criminal and Civil Courts;
• The seat of the Gram Nyayalaya will be located at the headquarters of the intermediate Panchayat, they will go to villages, work there and dispose of the cases;
• The Gram Nyayalaya shall try criminal cases, civil suits, claims or disputes which are specified in the First Schedule and the Second Schedule to the Act;
• The Central Government as well as the State Governments have been given power to amend the First Schedule and the Second Schedule of the Act, as per their respective legislative competence;
• The Gram Nyayalaya shall follow summary procedure in criminal trial;
• The Gram Nyayalaya shall exercise the powers of a Civil Court with certain modifications and shall follow the special procedure as provided in the Act;
• The Gram Nyayalaya shall try to settle the disputes as far as possible by bringing about conciliation between the parties and for this purpose, it shall make use of the conciliators to be appointed for this purpose;
• The judgment and order passed by the Gram Nyayalaya shall be deemed to be a decree and to avoid delay in its execution, the Gram Nyayalaya shall follow summary procedure for its execution;
• The Gram Nyayalaya shall not be bound by the rules of evidence provided in the Indian Evidence Act, 1872 but shall be guided by the principles of natural justice and subject to any rule made by the High Court;
• Appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal;
• Appeal in civil cases shall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal;
• A person accused of an offence may file an application for plea bargaining.

ACT IN NUTSHELL

Enacted with the intent of "providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected therewith"

 

Applicable to the whole of India except the State of Jammu and Kashmir, the State of Nagaland, the State of Arunachal Pradesh, the State of Sikkim and to the tribal areas, the Act provides for the "establishment of Gram Nyayalayas at the grass roots level".

 

Under the Act, it is the responsibility of the respective State Governments to establish, in consultation with its High Court, Gram Nyayalayas at the panchayat level and define their jurisdiction. Generally the headquarters of every Gram Nyayalaya shall be located at the headquarters of the intermediate Panchayat in which the Gram Nyayalaya is established and these nyayalayas would be presided by an officer called Nyayadhikari, who would also be appointed by the State Government in consultation with the High Court. The only qualification prescribed for being a Nyayadhikari is that "he is eligible to be appointed as a Judicial Magistrate of the first class".

 

The scheme of the Act, in intending to providing access to justice to the citizens at the grass-root level is that the "Nyayadhikari shall periodically visit the villages falling under his jurisdiction and conduct trial or proceedings at any place which he considers is in close proximity to the place where the parties ordinarily reside or where the whole or part of the cause of action had arisen." The State Government has been mandated to "extend all facilities to the Gram Nyayalaya including the provision of vehicles for holding mobile court by the Nyayadhikari while conducting trial or proceedings outside its headquarters."

 

Overriding the general procedural laws applicable in the country, the Act provides that the Gram Nyayalaya shall exercise criminal jurisdiction by following the procedure of 'summary trial' in respect of the offence which are specified in the schedule to the Act. The concept of 'plea bargaining' has also been extended to the Gram Nyayalayas. Almost similar measures have been provided for determination of civil disputes.

 

Calling for quick justice, it would be the duty of the Nyayadhikari to pronounce the judgment in every trial in open court immediately after the termination of the trial or at the most within the next fifteen days and hand over a copy of the judgment free of cost to the parties. Bringing it really close to the people, the Act also prescribes that the proceedings before the Gram Nyayalaya and its judgment shall be in one of the official languages of the State other than the English language.

 

Appeals from the decisions of the Gram Nyayalayas shall lie to the District and Sessions Court which is supposed to dispose off the appeal within six months. No further appeal from the District and Sessions Court is provided, leading to the culmination of the dispute.

 

It has also been entrusted to the Gram Nyayalaya to make attempts "to assist, persuade and conciliate the parties in arriving at a settlement". In this regard the Act also provides that District Court, in consultation with the District Magistrate, shall prepare a panel consisting of the names of social workers at the village level having integrity for appointment as Conciliators who possess such qualifications and experience such that conciliatory attempts can be made in these proceedings.

 

Giving teeth to these proceedings, the Act mandates the police officers, revenue officers and government officers to provide assistance to Gram Nyayalaya to carry out their functions.

 

 

INADEQUACIES OF GRAM NYAYALAYAS

 

The Act contains provisions which are likely to result in the unjust exclusion of the impoverished from just legal processes thereby restricting access to justice.

(i) Nature of Offences within the Domain of Gram Nyayalayas:

Schedule I of the Act lists those offences which can be adjudicated by the Gram Nyayalayas. Within its criminal jurisdiction, theft; concealment, disposal and receiving of stolen property; and insult with intent to provoke a breach of the peace are some of the offences that can be decided by these courts. Vitally, offences which are not punishable with death, imprisonment for life or imprisonment for a term exceeding two years are also included within the scope of its jurisdiction. Part II of this Schedule lists some statutes and offences committed under these Acts within the ambit of the criminal jurisdiction of the Gram Nyayalayas. Some of these include the Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Protection of Civil Rights Act, 1955, the Bonded Labour System (Abolition) Act, 1976, the Equal Remuneration Act, 1976 and the Protection of Women from Domestic Violence Act, 2005. Schedule II includes most property disputes and claims arising from Payment of Wages Act, 1936 and Minimum Wages Act, 1948 within the scope of civil jurisdiction of the Nyayalaya. Evidently, most of these legislations directly affect the impoverished. These are social welfare legislations which require careful and sophisticated adjudication. That this Act does not incorporate proper procedures is even more troubling, given the nature of disputes that will come up for consideration of these courts.

 

(ii) Circumscribed Right of Appeal:

The most problematic part of the Act – Part VII deals with appeals. Section 33 provides for appeals in criminal cases. Subsection (1) provides that notwithstanding anything contained in the CrPC or any other law, no appeal shall lie from any judgment, sentence or order of a Gram Nyayalaya except as provided hereunder. The Act already  revents appeals in cases where the "accused person has pleaded guilty" or where the Gram Nyayalaya has passed a sentence only of fine not exceeding Rs 1,000. This leads up to the legally unjustifiable, Section 34 (2) that provides that no appeal shall lie from any judgment or order passed by the Gram Nyayalaya (a) with the consent of the parties; (b) where the amount or value of the subject matter of a suit, claim or dispute does not exceed Rs 1,000; (c) except on a question of law, where the amount or value of the subject matter of such suit, claim or dispute does not exceed Rs 5,000. It is crucial to note that Sections 33 and 34 provide for appeals in certain cases to the court of session and the district court, respectively. Hence, a party can appeal the nyayadhikari's decision to a sessions court for criminal matters which must be decided in that forum by that judge within six months. For civil matters the appeal should be directed to district court which must decide it within six months. However, the Act prevents any further appeal after the decision of the court of session or the district court. Section 33 (7) provides that the decision of the court of session shall be final and no appeal or revision shall lie from the decision of the court of session. Similarly, Section 34 (6) provides that the decision of the district court shall be final and no appeal or revision shall lie from such decision. The revised version of the bill that was finally enacted also contains a proviso which allows for availing of judicial remedies available under Articles 32 and 226 of the Constitution. Therefore, for almost all matters that will be decided by the Gram Nyayalayas, there can be only one additional appeal to subordinate courts. Within the part of the Act, there are also concerns regarding the time limit imposed on filing an appeal against the decision of the Gram Nyayalaya. As per Section 33 (4), every appeal shall be preferred within a period of 30 days from the date of judgment, sentence or order of a Gram Nyayalaya in a criminal case. This is similar to Section 34 (3) which lays down the same restrictions for civil cases. The Parliamentary Committee which commented on the 2007 Gram Nyayalaya bill had criticized this provision and stated that "there were no valid reasons as to why the period of limitation provided in the Criminal and Civil Procedure Codes should not be made applicable" to Gram Nyayalayas (Department Related Parliamentary Standing Committee:

26). In spite of these recommendations, the Act continues to set a bar on the time period which is less than the time prescribed in the procedural laws. This is another example of the Act compromising on proper procedure and is bound to create difficulties for parties involved in litigation at the level of Gram Nyayalayas.

 

(iii) Summary Procedure and Plea Bargaining:

Gram Nyayalayas shall follow summary trial procedure in criminal cases. This runs contra to the CrPC that normally governs all criminal trials in the formal court system. Section 20 provides that any person accused of an offence may file an application for plea-bargaining in the Gram Nyayalaya in which such offence is pending trial and the Gram Nyayalaya shall dispose of the case in accordance with the provisions of the CrPC. This provision for plea-bargaining must be read in the context of Section 33(2) (a) which provides that no appeal shall lie where an accused

person has pleaded guilty and has been convicted on such plea. Further, plea-bargaining has been introduced in the CrPC, which governs the adjudication of criminal disputes in the court system. The Law Commission of India in its 142nd report had recommended a "competent authority", a metropolitan judge or magistrate of the first class or two retired high court judges (depending on the gravity of the offence) would be appointed as plea judges. The accused would file an application for a plea bargain to the"plea" judge. This would ensure that the accused could still get a fair trial from the regular judge should the plea bargain not go through (Tewari and Agarwal 2006). The 154th Law Commission felt that in the Indian context bargaining with a prosecutor would be hazardous and a competent authority would safeguard the principle of a fair trial. Unfortunately, the Gram Nyayalayas Act does not provide for such a competent authority. The application for plea-bargaining is to be filed with the court itself. Therefore, if such an application is rejected, this would in turn have an undue bearing when the

trial is conducted.

 

(iv) ‘Interests of Justice':

While the scheme of the Act which details the special procedure in civil disputes is not entirely undesirable, it is worthwhile to appreciate that Section 24 (7) provides that the proceedings shall, "as far as practicable", be consistent with the interests of justice. This provision employs non-binding language and is conditional while dealing with an issue of prime importance. Any proceeding in a court of law must be consistent with the interests of justice in all circumstances; however, this provision allows for non-compliance when it is not "practicable".

(v) Civil Court sans Civil Procedure:

In terms of civil suits, the Gram Nyayalaya has the power of a civil court, and the judgment passed by it shall be executed as if it were a decree of a civil court. However, the forum shall not be bound by the procedure in respect of execution of a decree as provided in the CPC and it shall be guided by the principles of natural justice. Section 30 of the Act dealing with the application of the Indian Evidence Act, 1872, provides that a Gram Nyayalaya may receive as evidence any report, statement, document, information or matter that may, in its opinion,  assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the said Act. The Act envisages day to day hearing with summary procedure and pronouncement of judgment within 15 weeks from the date of the last hearing. The proceedings shall be in one of the official languages of the state other than English, as far as practicable. The parties may argue their own case but they also reserve the right to engage a

lawyer to represent them. The Act also places a duty on the Gram Nyayalayas to provide for conciliation and settlement of civil disputes for which they shall follow the procedure prescribed by the high court.

 

(vi) Police Assistance:

The Act also seeks to provide for assistance of police to the Gram Nyayalayas, wherein every police officer functioning within the local limits of jurisdiction of such a court shall be bound to assist in the exercise of its lawful authority. Further, it binds the police officer or any other government servant to provide assistance when so directed by these courts. Galanter and Krishnan document the manner in which police assistance has affected the functioning of the Electricity Lok Adalats. The police, they note, in fact appear and advocate for the electricity companies. They point out how the police representatives act as the lead advocates not only in criminal matters but also in several other billing disputes. The author refer to Julia Eckert's description of the Shiv Sena courts in Maharashtra, where police representatives act as interpreters and arbitrators of the law. Given the similarity in the setting of lok adalats and Gram Nyayalayas, there are bound to be similar difficulties with the explicit inclusion of a provision warranting police assistance in the Act. In a system which compromises on issues of due process and prevents the usual number of appeals, it is dangerous to allow the police to offer "assistance" which may lead to coercion of the litigants.

CURRENT SCENARIO

The Centre's plan to set up 5000 'Gram Nyayalayas' across the country to bring justice delivery system to the common man's doorsteps has not found favour with the state governments. 

More than a year after the Gram Nyayalaya Act was notified, only four states have established such rural courts, while five have rejected the idea citing various reasons. According to figures compiled by the Law Ministry, since the Act was notified on October 2, 2009 to coincide with Gandhi Jayanti, four states together have established 96 rural courts while five others, including Delhi and Andhra Pradesh, have informed the Centre about their unwillingness to set up such courts. 

"Due to urbanisation, there is no need to set up Gram Nyayalayas," Delhi government said in its response to the Law Ministry. Similarly, the Andhra Pradesh government informed the Ministry that "there is no need to set up Gram Nyayalayas as the existing system is found very effective". 

The other states which have refused to set up rural courts are Tamil Nadu, Uttarakhand and Union Territory of Chandigarh.

Madhya Pradesh has set up 45 Gram Nyayalayas, Maharashtra nine, Orissa one and Rajasthan 46. Out of the total 96 rural courts established by these states, only 48 are operational. 

Law Minister M Veerappa Moily had recently inaugurated Rajasthan's first rural court in the subordinate court premises in Bassi near capital Jaipur.

A total of Rs 13.47 crore has been released to the four states so far.

A few months ago, Prime Minister Manmohan Singh and UPA chairperson Sonia Gandhi had strongly pitched for setting up of these courts to provide affordable justice to the vast majority living in villages.

Only 15 of the 28 states have so far responded to the letters sent by the Law Ministry, seeking proposals for setting up the Gram Nyayalayas to bring down three crore pending cases in lower courts. Jharkhand has formed a high-level committee headed by the chief secretary of the state "to look into the matter." Uttar Pradesh and West Bengal have agreed to set up these courts subject to cent per cent financial assistance from the Centre. Parliament had passed the Gram Nyayalayas Act in December 2008. The law provides for setting up of mobile courts at panchayat level, which would be presided over by a judicial magistrate (nyayadhikari), with powers to decide criminal and civil matters within six months.

 

In Gujarat

The Parliament passed the Gram Nyayalaya Bill, 2008 in the recently concluded winter session, thus establishing Gram Nyayalayas as the lowest tier of the judiciary for rural areas. The move will act as a major thrust in dispensing inexpensive and speedy justice to people in rural Gujarat. M H Shah, Secretary, Legal Department, Government of Gujarat, said that as per the provisions of the Bill, the state government will constitute 225 Gram Nyayalayas, one in every taluka of the state. Accordingly, 225 nyaya adhikaris — first class judicial magistrates working under the Gujarat High Court — will be appointed. In all, 4,725 new posts will be created and a new separate cadre will come into existence. "Although details of the Bill are yet to be ascertained, our estimates suggest a total expenditure of Rs 300 crore for developing the infrastructure of Gram Nyayalayas across the state," As per the provisions of the Bill, the Central government will bear the full cost on capital account and the nyaya adhikaris will be required to hold mobile courts and conduct proceedings in villages.

Litigation cost will also be borne by the state.

Officials of the Legal Department also hoped that these Gram Nyayalayas will help reduce the Lower Court pendency in Gujarat that has crossed 24,20,052, of which 7,28,305 is civil pendency and 16,91,747 is criminal pendency.

CONCLUSION

 

The government should appreciate that the aim of adjudication is not merely peace, or the maximisation of the ends of private parties. It is to give force to constitutional values and ensure that such values infuse the content of the true aim of adjudication – justice. A statute that is created only for people residing in rural areas, with limited procedural guarantees, to adjudicate allegedly small claims – including those that implicate a litany of social welfare legislation concerning – Minimum Wages, Civil Rights, Abolishing Bonded Labour, Equal Pay and Protection from Domestic Violence compromises the promises of our Constitution. It makes a mockery of that which is most sacred to all law – that power resources and the quantum of private gain will not determine the aims or means of the process that is adjudication. The Gram Nyayalayas Act violates this essential foundation of adjudication.

 

The Gram Nyayalaya is a supplement to present judiciary. As mentioned in the introduction of the project it would help to reduce backlog of cases. Moreover it would not be interfering in the Panchayat system.

 

There was suspicion that these courts are being set-up with ulterior motives of ‘managing litigation' and with the purpose of reducing the pendency of cases. A recurring question was whether speedy disposal meant speedy justice for the poorer litigant. A court that is closer to the rural litigant and a speedy disposal are definitely laudable objective of the legal system. However, an emphasis on speedy disposal alone raises doubts if these are moves are being made to manage the arrears of the cases or to enable better access to the litigant-people. Surely long pendency is not the only issue which affects a litigant's expectations in the courts. One was also unclear about what to draw from the experiences of the other special courts such as Fast Track courts or the Lok Adalats. Clearly, family courts, despite its emphasis on conciliation and relaxed procedures, ended up functioning like regular civil courts. Considering the disappointing practices of special courts and their functioning, the question remains, whether the Gram Nyayalaya be able to establish a new forum for litigation.

 

BIBLIOGRAPHY

Books Referred:

1. Narayana P.S., Law Relating to Gram Nyayalayas, (Allahabad: Law Publishing House) 2009.
2. Mallk Krishnpal Dr., Gram Nyayalaya Act, 2008,

 

Articles Referred:

1. "National Consultation on Judicial Accountability and the Gram Nyayalayas Act,2008".
2. Vasudha Nagaraj's, ‘The Gram Nyayalaya; The New Face of The Judiciary'
3. A recent newspaper article dated January 4th 2011, "Idea of Gram Nyayalaya not hit with the states".
4. A newspaper article "State to Constitute 225 Gram Nyayalayas".
5. ‘'Gram Nyayalayas : a cause for optimism?".
6. An article by Prof. Usha Vaidyanathan, "Salient features of the 114th Law Commission Report on Gram Nyayalaya".

Websites Referred:

1. http://www.prsindia.org/uploads/media/1180414050/bill117_20070906117_Legislative_Brief____Gram_Nyayalayas_2007.pdf
2. http://netindian.in/news/2009/09/29/0003533/gram-nyayalaya-act-come-effect-oct-2
3. http://www.prsindia.org/uploads/media/1224668109/1224668109_The_Gram_Nyayalayas_Bill__2008.pdf

Legal Databases Referred:

1. The Law_Sup
2. Lawsuit
3. Supreme Court Cases

 

 

 

About the Author

The author is 3rd Year Student studying in Institute of Law, Nirma University

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