“Establishment of Nyaya Panchayat in Uttar Pradesh and other States in India and its Progress”

Introduction

Panchayats historically have been one of the fundamental and basic institutions in the village life of India. With the passage of time, their forms and structures have changed. Several factors have contributed to this. The path travelled by panchayats in this country has truly been a long and arduous one. India’s massive attempt to provide access to its rural population through the promotion of Nyaya Panchayats is both theoretically provocative and practically important. India has a strong tradition of adjudication at village level. The term panchayat literally means the “coming together of five persons”, hence meeting council who assembled to judge disputes or determining group policy.  Nyaya panchayats are basically a system of dispute resolution at village level. It can be endowed with functions based on broad principles of natural justice and can tend to remain procedurally as simple as possible. They can be given civil and minor criminal jurisdiction.

The earliest Nyaya Panchayats were the village court established under the Village Courts Acts of 1988. The Royal Commission on Decentralization of 1909, recommended the revival of Nyaya Panchayats having both criminal and civil jurisdiction arising within the village. Since independence almost all states enacted village Panchayats Acts as guided by the directive principles. The village panchayat and nyaya panchayat existed as dual entities in order to have sepration of judiciary from executive. Since a forum for the resolution of disputes with the participation of people in local justice administration is the goal envisaged by Article 39-A of the Constitution of India, It is submitted that nyaya panchayats guided by local traditions, culture and behavioural pattern of the village community instil confidence in the people towards administration of justice.

The law commission in its report in august 1986 indicated that Nyaya Panchayat( hereinafter referred as NP) that “Article 39-A of the Constitution of India directs the state to secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislations and schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by economic or other disabilities. This is the constitutional imperative. Denial of justice on the grounds of economic and other disabilities is in nutshell referred to what has been known as problematic access to law. 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.”

Hon’ble Justice S.B Sinha, Judge Supreme Court of India, emphasizing the importance of Nyaya Panchayats in a lecture delivered to District Judges observed that, “There is also a need to deliberate on the methodologies to be adopted for encouraging justice dispensation through the traditional forum of Panchayats. This age-old institution has found new vigour with the introduction of the 73rd Amendment to the Constitution, and most accordingly to be considered another pillar in the edifice that symbolizes justice. Strengthening the institution of Panchayats and empowering people at the grass-root level to resolve their disputes amicably would solve many of the problems that is faced by conventional justice dispensation machinery in its attempts to percolate to the lowest levels. This would provide a, solution to the problems of access to those living in remote regions.”

Moreover, The Gram Nyayalas Bill, 2007 is also introduced in Parliament and if passed, it provide a systematic and more efficient working of NP in whole of India as it seeks to establish Gram Nyayalayas for the purpose of providing access to justice, both civil and criminal, to the citizens at the grass-roots level 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 or incidental thereto.

In my project, therefore i have extensively dealt with the set up, establishment and progress of NP, particularly in the state of Uttar Pradesh and other parts of country also.

Status of Panchayati Raj Institutions in country

The passage of the 73rd Constitution Amendment Act, 1992 marks a new era in the federal democratic set up of the country and provides Constitutional status to the PRIs. The main features of the Act are: (i) constitution of panchayats at village, intermediate (block) and district level; however, panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakh; (ii) regular elections to Panchayats; (iii) reservation of seats for Scheduled Castes /Scheduled Tribes and Women (33%); (iv) setting up of an independent State Finance Commission for strengthening finances of local bodies at all levels; (v)constitution of an independent State Election Commission to hold PRIs elections on a regular basis; (vi) legal status to Gram Sabhas; and (vii) addition of Eleventh Schedule to the Constitution listing 29 Subjects within the jurisdiction of PRIs. Further, the 73rd Constitutional Amendment Act contains provisions for devolution of powers and responsibilities upon panchayats at the appropriate level with reference to (a) the preparation of plans for economic development and social justice; and (b) the implementation of such schemes for economic development and social justice, as maybe entrusted to them. The Provision of the Panchayat (Extension to Scheduled Areas) Act 1996 (PESA) extends panchayats to tribal areas in nine States. It enables the tribal society to shape their own development and preserve & conserve their traditional rights over natural resources.

The status of PRIs in a State can be reviewed in terms of following parameters:

(i) Conduct of Panchayat Elections;

(ii) Devolution of Financial Powers;

(iii) Devolution of Functions and Functionaries;

(iv) Constitution of District Planning Committees (DPCs);

(v) Act 40 of 1996 – Provision of the Panchayat (Extension to Schedule Areas) Act, 1996 (PESA); and(vi)  Status and Empowerment of Gram Sabha.

Historical Background of Establishment of Nyaya Panchayat in State Of UP and State Initiative taken to strengthen PRI:

This whole journey of Panchayats can be delineated into different heads described as under:

During Vedic and post Vedic Times till British Period:

Although early records of exclusive history of panchayats in UP are not available, yet, reference to panchayats in the history from Vedic and post-Vedic times are aplenty. It may be assumed that broadly the structure and functions of the panchayats described therein must have also been valid in the area, which is now called UP. It has been extensively written in the history books that by the time of the last Mughals there was a thriving system of local government.

During British Rule in India:

The British have been blamed for all the ills plaguing the country today. Thus it has been said that the stable village government in India was widely shaken with the arrival of the British who adopted a policy of centralisation. As a result of this the panchayats disintegrated, panchayat functionaries lost their age-old power and functions and tehsildars took the work of village headmen. Thus the government officials became spokesmen of the people and a gulf was created between the rulers and the ruled.

Local self-government received its first impetus during the viceroyalty of Lord Mayo in 1870. The Famine Commission of 1880 emphasised the importance of local self-government. Lord Ripon’s resolution of 1882 on local self-government considered it as a means of popular and political education. However, the issue of local self-government in the country was taken up in right earnest in 1907-08 by the Royal Commission on Decentralisation. This commission recommended formation of Village Panchayats so that the local government might be built up from the bottom. The Government of India Act, 1919 made local self-government a transferred subject, which earmarked the growth of these bodies under the patronage of elected ministers. With this, UP enacted the United Provinces Village Panchayat Act, 1920. Other provinces like Assam, Bengal, Bombay, Central Provinces and Bihar followed suit.

In consonance with the policy of the British rulers to revive the panchayats in the country the objective of the UP Village Panchayat Act, 1920 was to revive them in the province. It sought to confer on panchayats civil, criminal and administrative power. The panchayats were also assigned duties in matters of sanitation, education and the like. No doubt, this Act had many shortcomings: it did not give sufficient freedom to the people to establish panchayats in their areas, there was no provision for election of Panches and the functional resources were hopelessly lacking. But it led to the passing of the UP Panchayat Raj Act of 1947.

The UP Panchayati Raj Act, 1947:

The UP Panchayat Raj Act, 1947 was passed with a view to establish local self-government in the rural areas of UP and to make provision for better administration and development of villages. It provided for the formation of Gaon Sabha and Gaon Panchayat in each village and the Panchayat Courts in a group of villages. The Gaon Sabha was to consist of all inhabitants of the village above the age of 21. The Act provided for election of the Pradhan by the Gaon Sabha through joint electorate for a period of three years. The Act also provided for election of the executive body, that is, the Gaon Panchayat by the Gaon Sabha for three years. Seats were reserved for the SCs and STs and minority communities.

Under this Act the first elections to Gaon Panchayats were held in 1949 and the first Gaon Panchayats started functioning from August 15, 1949. Panchayats Courts were also set up on the same day. When First Five Year Plan began in 1951 Development Committees were formed at the Panchayat Courts level and members nominated to them. Around the same time one Pradhan each was nominated from each tehsil to the District Planning Committee (DPC) which are now defunct (even after the passage of the Constitution Seventy-third Amendment Act, 1992).

Watershed Events in Panchayati Raj in UP  Since 1947 Legislations

1947: Enactment of the United Provinces Panchayat Raj Act, 1947

1952: Amendment to the United Provinces Panchayat Raj Act, 1947

1961: Enactment of the Uttar Pradesh Kshetra Samiti and Zilla Parishad Adhiniyam, 1961

1989: Amendment to the United Provinces Panchayat Raj Act, 1947

1994: Amendment to the United Provinces Panchayat Raj Act, 1947 and the Uttar Pradesh Kshetra Samiti and Zilla Parishad Adhiniyam, 1961

Elections

First elections             :     1949

Second elections       :     1955

Third elections           :     1961

Fourth elections        :     1972

Fifth elections             :     1982

Sixth elections            :     1988

Seventh elections      :    1995 (plains) and 1996 (hills)

Following the report of a Committee of MLAs appointed in 1953-54 to suggest Amendments to the UP Panchayat Raj Act was amended. This Amendment had far-reaching provisions: It merged jurisdiction of Gaon Sabha and Gaon Samaj; Gaon Sabhas were formed in all the villages with population of 250 or more; and Panchayat Courts were re-nominated as Nyaya Panchayats. The second panchayat elections were held in 1955. To boost development of the villages Krishi Samitis were formed in a majority of Gaon Sabhas and these were followed by the constitution of Krishi Utpadan and Kalyan Up-samitis at the same level.

Uttar Pradesh Kshettra Samiti and Zilla Parishad Adhiniyam, 1961:

The year 1961 was a watershed year in the history of Panchayati Raj in UP. During this year Uttar Pradesh Kshettra Samiti and Zilla Parishad Adhiniyam, 1961 was enacted and implemented. During the same year third elections to panchayats were held. These were followed by fourth elections in 1972 and fifth ones in 1982 for which voters’ minimum age was reduced from 21 years to 18 years.

Amendment in 1980:

Yet another major Amendment to the UP Panchayat Raj Act, 1947 was carried out in the early 1980s provided that 30 per cent of the panchayat members’ posts be reserved for women and at least one woman belonging to SCs be represented on the panchayat. The sixth elections conducted in 1988 following this Amendment led to election of over 1.5 lakh women members to the panchayats and of these nearly 66,000 belonged to SCs. Though posts of Pradhans were not reserved for women, 930 women were also elected as Pradhans. From the next year, that is 1989, Jawahar Rojgar Yojana (JRY) was given to the panchayats. This opened up a new set of issues in the Panchayati Raj regime.

It is in this backdrop that following the Seventy-third Amendment to the Constitution of India the United Provinces Panchayat Raj Adhiniyam, 1947 and the Uttar Pradesh Kshettra Samiti and Zilla Parishad Adhiniyam, 1961 were amended through the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994. But before dwelling into this subject a few more observations seem to be necessary for understanding general developmental scenario in the country.

PROFILE OF THE PANCHAYATS

When the new Panchayati Raj laws came into force there were 67 districts in the State. As a result 67 Zilla Panchayats were created. At that time there were 901 developmental blocks in the State and, therefore, as many Kshettra Panchayats were created. And as mentioned above as a result of re-organisation, 58,620 Gram Sabhas were created. These Gram Sabhas were to elect as many Gram Panchayats.

Successive State Governments have created a number of districts in the State, taking the tally to 83 as a result of which the number of Zilla Panchayats has increased to these many districts. No definite information is available as to whether there has been any increase in the number of Kshettra Panchayats as no developmental blocks seem to have been created during the past five years. And definitely there is no increase in the number of Gram Panchayats. At the beginning of the year 1999, the break-up of the three levels of panchayats is presented in Table.

Table: Panchayats in Uttar Pradesh

Sl. No.

Panchayat Tier

Number

1.

Zilla Panchayats

83

2.

Kshettra Panchayats

901

3.

Gram Panchayats

58,620

STATE INITIATIVES TO STRENGTHEN PRI

The 73rd Amendment to the Constitution and amended panchayat laws in Uttar Pradesh present a historic opportunity to enlarge the scope of people’s participation in economic and political decision-making. Ever since the amendment of the panchayat laws the State Government is making a concerted effort to strengthen PRIs. These efforts may broadly be put into three categories: legislative, administrative and support. While the term legislative effort is self-explanatory, administrative efforts include setting up of two commissions and subsequent follow-up action and support includes support provided by the Government or its agencies to Panchayat representatives through trainings, workshops, seminars, information dissemination, etc.

LEGISLATIVE EFFORTS

Soon after the amendment of the then laws related to panchayats in the light of the 73rd Amendment to the Constitution of India, the State Government went on a spree of legislations: it amended and re-amended the already amended panchayat laws, formulated rules and regulations and changed them, issued notifications and withdrew them. Parts of these legislative actions are technical in nature, concerning with the routine things. The remainder actions, however, have strengthened the panchayats, though sometimes they have produced reverse effect too.

Analysis of these legislative actions and their fall-out is a wide subject, enough to lead to a book of this size. Therefore, the subject is being dealt with in the briefest possible form before switching over to administrative and support measures to strengthen the panchayats.

Delimitation of Panchayat

The UP Panchayat Laws (Amendment) Act, 1994, was promulgated on April 22, 1994. Soon its shortcomings came to forth, specially as far as demarcation of panchayat areas in the hill areas and determination of population of backward classes were concerned. Through an Ordinance promulgated within five months, on September 21, 1994, a provision for determining population backward classes, who were provided 27 per cent reservation by the amended laws, was made. The other provision related to clubbing of villages for the purpose of forming panchayat area in the hill areas of the State. By this Ordinance all the villages falling within the radius of 1 km were to be clubbed to form a Panchayat area as against the earlier radius of 5 km. Similarly radius for territorial constituency for election of Kshettra Panchayat member was also decreased from 5 km to 1 km. As against this one-fifth reduction in radius for delimiting Gram Panchayat and territorial constituency for Kshettra Panchayat member, radius for territorial constituency for Zilla Panchayat member was halved from 14 km to 7 km. The argument behind this reduction was that large distances and difficult terrain in the hill area necessitating coverage of all the distances on foot only prevent participation of villagers in Gram Sabha meetings.

ADMINISTRATIVE EFFORTS

Besides legislative efforts, the State Government constituted two commissions: one, the Commission on Devolution of Functions and Powers to the Panchayats, and, two, the State Finance Commission. The former was headed by and IAS officer  Shri JL Bajaj and the latter by the retired Secretary to the UP Vidhan Sabha Shri Bhan Chandra Shukla. The Commission on Devolution of Functions and Powers to Panchayats has come to be popularly known as Bajaj Commission.

Devolution of Functions and PowersThe 73rd Amendment to the Constitution of India has included devolution and local self-government through the three-tier Panchayati Raj structure as a basic feature of India democracy. The Article 243-G of the Act reads:

“the legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to

(a)The preparation of plans for economic development and social justice;

(b) The implementation of plans for economic development and social justice as may be entrusted to them in relation to the matters listed in the Eleventh Schedule.”[1][2]

Nyaya panchayats: an introductory note

Under section 2(a) of the Uttar Pradesh Panchayat Raj Act, 1947 define nyaya panchayat as ” it means a nyaya panchayat established under section 42 and includes a bench thereof.”

Section 42 deals with the establishment of nyaya panchayat:

Section 42(1) says that the state government or the prescribed authority shall divide a district into circles, each circle comprising as many areas subject to the jurisdiction of Gram Panchayat as may be expedient, and established a nyaya panchayat for each districts.

Provided that the areas of Gram Panchayat within each circle shall, as far as possible be continguous.

(2) Subject to the minimum of ten and maximum of twenty five , every nyaya panchayat shall have such number of members, as may be prescribed, but it shall be lawful for nyaya panchayat to function not withstanding any vacancy therein;

Provided the number of panches is not less than 2/3 of the prescribed strength.

Section 43 deals with the appointment of panches and their term while section 44 deals with election of sarpanch or sahayak sarpanch.

Section 45 gives the detail about the term of a panch which provides that the term of every panch of nyaya panchayat shall commence on the date of his appointment as such, and unless otherwise determined under the provisions of this act, shall expire with the Gram Panchayat from which he was appointed.

Section 47 deals with the resignation of panches  and section 49 deals with the benches of nyaya panchayat which provides that sarpanch or sahayak sarpanch may establish any such bench of nyaya panchayat consist of 5 members in any part of that circle by the consent of other members of the nyaya panchayat and act as part and parcel of that nyaya panchayat just for quick of disposal of cases.

Section 51 deals with the territorial jurisdiction of nyaya panchayat  in which s.51(1) and (2) deals in civil matters and s.52 deals in petty criminal offence triable by nyaya panchayat which shall be dealt more elaborately in subsequent pages.

Section 54 deals with penalties in which section 54(1) says that no nyaya panchayat shall inflict a substantive sentence of imprisonment.

Section 56 deals with the transfer of cases by courts to NP and subsequent section deal vice versa.

After the brief statutory introduction of nyaya panchayat, now one can throw some light into the reasons which calls for the need of certain changes in the present act:[3]

Judicial Backlog

With a rapid increase in the number of people approaching the courts, the primary concern faced by the Judiciary is the escalation in the amount of new cases coming in and an ever increasing backlog, which seems to have assumed insurmountable propositions making access to justice to the public at large a far delayed and long drawn process. There are more than three crore cases pending before the various courts of India as stated by the Chief Justice of the Supreme Court of India.

Other Reasons

The following considerations seem to have prompted the Law Commission and the Study Team on Nyaya Panchayats to recommend the revitalisation of nyaya panchayats:

  1. They would dispose of a large number of cases and thus relieve the burden of regular courts.
  2. They would succeed in getting a large number of cases compromised through peaceful conciliation.
  3. The villagers in general would be satisfied with the administration of justice obtaining in village or panchayat courts and that the decisions of these courts on the whole would do substantial justice.
  4. Appeals and revisions from these decisions would be small in number.
  5. There should be speedy and cheap disposal of cases.
  6. The litigants and witnesses who are mostly agriculturists can conveniently attend the courts and thus there would be no interference with agricultural activities in the village.
  7. The panchayat could bring justice nearer to the villager without involving the expenditure which would otherwise have to be incurred in establishing regular courts.
  8. Panchayat would have an educative value.
  9. Local courts acquainted with the customs of the neighbourhood and nuances of the local idiom are better able to understand why certain things are said or done.
  10. An institution nearer to the people holds out greater opportunities for settlement and a decision taken by it does not leave behind that trial of bitterness which generally follows in the wake of litigation in ordinary courts.
  11. There are better chances of conciliatory method of approach in nyaya panchayats.
  12. People in a village are so closely known to each other that the parties to a dispute would not be able to conceal or produce false evidence easily and those who tell lies before the nyaya panchayat face the risk of being looked down upon and even boycotted by others.
  13. Panchas being drawn from among simple village folk strive at decisions which are fair and at the same time consistent with the peculiar conditions of the parties. [4]

Nyaya panchayats: Experimentation in legal access for the village population

A.  The formation of Nyaya panchayats:

While Article 40 of the constitution enjoins the state to organise village panchayats, another directive principle, Article 50 directs it to take steps to separate the judiciary from the executive. From the states which already had a system of village courts at the time of the adoption of the Constitution (Madras, Mysore, Kerala), only a few states ( Madhya Pradesh and Uttar Pradesh) implemented Article 50 upon the adoption of constitution by creating separate nyaya panchayats. In the period following the adoption of the Balwantry Mehta Committee Report (1959) and the reorganisation of the village institutions both as local government and developmental agencies, many more state established nyaya panchayats(NP) as separate judicial bodies, thus fulfilling the directive principles of separation of judiciary from the executive. Panchayat institutions were reorganised and oriented to a wider range of functions, it was felt that considerations in efficiency of performance of the assigned developmental and governmental tasks required relief from the judicial workload. The Law Commission 14th report testified to the volume of workload. Eg. In the UP, the judicial panchayat heard, for the period of 15th august 1949 to 31st march 1956, 1,914,098 cases, of which 1,894,440 cases were disposed. Clearly, then, as a measure of efficient allocation of workload, the establishment of NP must have essential.

Apart from the ideology of separation and consideration of efficient division of labour, the creation of NP can be seen as illustrating two other reasons:

1)    Their creation testifies to the concern for providing easy legal access to village population.

2)    At the same time, it also represents a massive attempt by the state to displace the existing dispute processing institutions in village areas- be they jati institutions, territorially based secular institutions or special dispute processing institutions established under the auspices of social reformers[5]. The NP seek to do this by retaining procedural flexibility and lay adjudicators, thus co-opting the very feature of institution they seek to displace. On the other hand, the NP as integral part of administration of justice, are characterized by principle of formal organisation and of judicial oversight and control which do not mesh in with the organisation of justice by village communities. In the very structuring of NP, therefore, inheres the drive to extend state power and constitutionalist ideology to the countryside, and this create incompatibilities and dilemmas to which there is no easy solution.

B. constitution and composition of NP:

NP are generally established for a group of villages, usually an area covering 7 to 10 villages. NP usually cover a population of 14,000 to 15,000 villagers. A member of NP must be able to read and write the state language, must not suffer from any disqualifications described in the statutes, and must not hold an office of sarpanch or be a member in the samiti, parishad, or state or union legislature.

Almost all states have adopted election as a method of constituting to NP. Each Gram Panchayat elects members of NP. Some states combine the method of election with nomination; thus in the state of UP, members of Panchayats nominate a person from among themselves to membership of the NP; such nomination may also be consensus. The nomination are then screened by a sub- divisional officer and forwarded to the District Magistrate, who as a chairman of Advisory Committee established for the purpose, shall ultimately appoint members of NP.[6]

Another combination of nominative and elective principles is furnished by the Bihar legislation in which the Panchayats Courts, comprising the Sarpanch and 8 other panchas, are chosen in three different ways. The Sarpanch is directly elected by the Gram Sabha; four Nyaya Panchayats are directly elected, but from wards into which panchayats are divided for election purposes; the remaining four are chosen from the Gram Panchayat by the NP Sarpanch and 4 elected members in a joint meeting.

One might also mention the states of Kerala and the Union Territory of Delhi are furnishing extreme ends of the spectrum: in the former all Nyaya Panchas are nominated; in the latter all of them are directly elected.

One of the few empirical studies of NP discloses the dominant role of the Sarpanch of the Gram Panchayat in the process of indirect elections of NP. Since each Panchayat generally elects one Nyaya Pancha, politics and patronage do intrude in elections.

Very often the person elected by the Panchayat is a man “with ridiculously low level of education … quite incapable of understanding the niceties of Law” he has to administer. Often the Sarpanch accommodated the defeated members in NP.[7]

The dominance of Panchayats by Sarpanches has emerged as a general structure feature of PR in action. The recent report of a High Powered Committee on Panchayati raj in Rajasthan recommends the abolition of NP altogether, partly on the ground that they have “not been able to inspire public confidence”[8]. Similarly, The Maharashtra Evaluation Committee on Panchayati Raj finds entrustment of judicial functions to NP “on the basis of democratic elections or otherwise” both “out of place and unworkable” and also recommends the abolition of NP.

C. Nature of dispute and quality of Justice:

If available information on the organisation and functioning of NP is meagre, information on the subject matter of disputes and the quality of justice of NP processes and outcomes are virtually nonexistent. Aside from the statistical breakdown of disputed matters into the categories of “civil” and “criminal”, neither the fourteenth Report of Law commission nor the 1962 study Team Report give us information relating to those two dimensions. But to comprehend NP we need to know about the types of disputes that reach them, the nature of their adjudicatory processes, and the outcome they arrive at. An understanding of the interrelation of NP on the one hand and communities dispute processing institutions on the other is inconceivable without the detail grasp of the nature of disputes, sanctions and incentives entailed in the functioning of NP.[9]

Concern with the quality of justice administered by the NP system has been confined mainly to a theoretical and structural level. As against considerable attention given to the issues of constitution of NP or training programme for the nyaya panchas, existing literature does not probe the justice qualities of NP’s functioning. We have no systematic data, e.g. on “impartiality” in hearing and disposal of cases, equality in implementation (regardless of socio-economic status of parties involved) of “fairness” of individual decisions. We have reason to think that substantial time lags do occur in disposal of cases; post judgment conciliation does raise doubt concerning the justice of specific outcomes.

A recent study in UP indicates that factions within villages can influence the NP substantially in favour of a powerful faction, at the expenses of justice values.

Concern for the justice qualities of NP led the Law Commission in its fourteenth Report to suggest short term training program for nyaya panchas. Panchas must be “humble” as well as “fearless”; they must to learn to bear in mind that all are equal before the law and that law is no respecter of persons”. They must conform to the principles of “natural justice” and must not only avoid bias, ill will or affection but must appear to have them so avoided them.”

Rajasthan trained several hundred persons in 1962-64, but this number was but a small portion of almost 25,000 in panchas in the state (based on the 20-25 panchas for each 1370 NP).[10] In 1973, the state government of Manipur allocated rupees 20,000 for training of nyaya panchas[11]. Little information is available on the effectiveness of these training programs. The futility of Bihar’s training efforts, reporting that the rapid turnover of panchas in the state and the slow pace of the Training programme resulted in only one or two panchas in each bench having received any formal help.[12]

Ideological and structural dimensions of nyaya Panchayats operation:

A. panchayat Ideology:

Three separate roles and associated goals have been, and still are being, urged for NP:

  1. As an arm of the state judicial service
  2. A branch of the community development program
  3. As modified version of the traditional panchayat

As part of the state judicial system,(NP) ( separated from panchayats exercising administrative authority in accordance with Directive Principle, Article 50 of the constitution) were to displace existing indigenous institutions- whether based on caste, village and other groupings- and carry state power and constitutionalist vision of India into the rural areas. Alternatively, NP were to assist in the reformation of rural society by providing practical experience in handling village affairs and educating the general people about their privileges and obligation in an independent India. NP were to serve symbolically and practically as informal, accessible panchayats and to adopt many of the traits of traditional panchayats to buttress this role.

Reports on India Legal System and the administration of justice have reiterated the government devotion to the Panchayat and reflect what can best be called the dominance of the “panchayat ideology”. Both The National Report on Juridicare (India Ministry of Law, Justice and Company Affairs, 1978) and The Ashok Mehta Committee Report on PR (India, Ministry of Agriculture and Irrigation,1978) note a decline in current NP systems in UP and other Indian States but support its retention and recommend smaller bodies, larger budgets and slightly enhanced jurisdiction. However, in the intervening years no state has adopted these recommendations or otherwise altered NP, although some have abolished them altogether. The Panchayat ideology is one that politicians and legal policy makers can safely support without having to implement an effective NP system.

B. Jurisdiction and Authority:

NP have civil jurisdiction in pecuniary claims under rupees 500 (unless both parties agree to submit a larger matter) involving money due on contracts not effecting interest in immovable property, compensation for wrongfully damaging and taking property, and recovery of movable property. Criminal jurisdiction is more extensive and covers a substantial range of offences under the Indian Penal Code. E.g.

  1. Criminal negligence
  2. Trespass
  3. Nuisance including water population
  4. Possession or use of false weights and measures
  5. Theft
  6. Misappropriation
  7. Intimidation
  8. Perjury
  9. Attempt to evade summons

And specialized statutes like

  1. Cattle Trespassing Act
  2. Gambling Acts
  3. Prevention of Juvenile Delinquency Act

The NP are authorised to levy fines up to Rs.100, but they have no power to sentence offenders to imprisonment, even for failure to pay a fine.

Two essential features of lay adjudication, simplicity of procedure and flexibility of functioning, are realized in the design of NP. They are not encumbered by the need to follow elaborate rules of civil and criminal procedure or the law of evidence. Complaints may be made orally or on writing, no legal representation is allowed, although in some civil matters parties may be represented by an “agent”. Witnesses if any are examined on oath or solemn affirmation. After the party’s present evidence and arguments informally they are asked to absent themselves; panchas confer among themselves and arrive at a decision, which is pronounced in open court. A judgment is written and signed by both parties.

Despite these informal attributes, NP do differ from traditional dispute Institutions in several significant respects.

  1. Membership are fixed rather than flexible and based indirectly on popular election rather than social understanding.
  2. NP constituencies are territorial units rather than functional or ascriptive groups.
  3. They decide by majority vote rather than consensus.
  4. They are required to follow statutory law.
  5. Because they are supported by the government, they can access minor court fees, issue a summons, precede ex-parte in the case of a recalcitrant property, and execute decrees by attaching certain movable property.
  6. They are required to maintain records of evidence, judgments, and all panchayat transactions, and are subordinate to higher civil and criminal courts through the sub district magistrate; their decisions can be appealed in a few limited areas.[13]

C.  Resulting Structural Deficiencies:

Several structural weaknesses, are apparent from the preceding descriptions taken together with data on NP in other parts of UP.

  1. The system of constituting NP through a combination of election and nomination helps to render the public apathetic and fearful of official favouritism and increases factionalism in local panchayat elections.
  2. Moreover, infrequent elections (e.g. there have been no PR election in state of UP since 1972 which was only the third of their inception) discourages public interest in the electoral process[14].
  3. The limited jurisdictional powers reduce the effectiveness of NP decisions. Criminal cases of theft and misuse may not involve property worth more than rupees 50; overlapping jurisdiction allow people to send cases cognizable by NP to munsif and judicial Magistrate and the later readily accept application to transfer cases from NP.
  4. Low budgets reduce NP activities considerably. E.g. neither Chanpur nor purannagar NP had permanent meeting places or permanent chapprassis. To call witness or serve process.
  5. The low education level of the panchas makes it difficult for them to handle the procedural technicalities of NP operations. The sole requirement of panch is that he or she be 30 years old or able to read and write in hindi. All expressed concern that the manuals, forms and procedures provided for NP were too complicated for them to understand and said they left things to the sarpanch to decipher.
  6. Even more confusing than the rules and regulations are the conflicting rules and duties that sarpanchas and panchas are supposed to fulfil. They are to be honest, upright and impartial; sensitive to the needs of parties; responsive to the situation; energetic in obtaining information and declaring rights and wrongs; fair in reaching a suitable compromise and forceful in levying and collecting fine, with hardly any means to do so. They are judges but act only as a body.
  7. By accepting nomination to the NP they lose the power and prestige that goes with the membership in the GP. But confirm the power the power and position they already possess as local leaders. The rules they apply are the mixture of official law and local custom, which must be acceptable to a population that knows little about it. And this is to be done without compensation.
  8. Only those with money, time and local support are interested in filing the position just prescribed. E.g. in the village of Bharatpur in UP, only Thakurs are interested or seemed to dominate NP position through their control of substantial holdings and large political base.[15]

Nyaya panchayats in Action: Caseload, process, politics and Alternative Forums (in the state of UP)

A. caseload:

NP in UP are moribund today, caseloads having declined from a state high of 1,914,098 cases in 1949-50 tom a paltry 17,782 in 1972. The 8297 NP functioning in 1972 heard an average of 2.1 cases, whereas in 1950-51, the 8543 NP heard an average of 59.3 cases. More recently, 16,035 new cases were reported filed in 7131 NP in 1976-77. These trends are confirmed by other regional studies in UP and contrasts sharply with the steady rise in civil litigation in UP districts courts until 1969 and the dramatic rise in criminal cases. The High Courts Arrears Committee of India reported that over 500,000 appellate cases are pending in all state high courts, 100,000 in Allahabad alone.

Table 1: workload of Nyaya panchayats in Uttar Pradesh:[16]

Year

No. Of NP

Civil

Filed

Pending

Criminal

Filed

Pending

Total filings

Filings per NP

1950-51

8543

1.

1.

633,502

59.3

1951-52

8543

2.

2.

123,363

14.4

1952-53

8543

3.

3.

302,548

35.4

1953-54

8543

4.

4.

347,790

40.7

1954-55

8543

5.

5.

371,519

43.4

1955-56

8543

6.

6.

105,376

12.3

1960

8583

7.

82321

7.

1961

8662

8.

53523

22 744

8.

37 584

20 852

91,107

10.51

1962

8662

9.

49164

22 275

9.

32 579

18 384

81,743

9.53

1963

8700

10.

93994

25 350

10.

71 792

17 059

165,786

19.05

1964

8626

11.

83627

19 684

11.

55 873

15 424

139,500

16.17

1965

8687

12.

55000

11 898

12.

36 904

11 451

91,904

10.57

1966

8680

13.

35362

19 498

13.

31 854

8 059

67,216

7.74

1967

—-

1968

8580

14.

14.

1969

8833

15.

22600

4 025

15.

15 671

2 780

38,271

4.33

1970

8727

16.

22912

4 766

16.

12 953

4293

35,865

4.10

The drastic decline in cases from 633,502 in 1950-51 to only 35,865 in 1969-70 reflects the same trend.

The rate of filing per NP has fallen to 1/4 of its peak in the 1950’s. The above figure displays the average filings per panchayat for Uttar Pradesh.

The highest rate in 1950-51 may be due to at least in part to an accumulation of cases between enactment and commencement of NP, and those in 1952-54 may reflect a surge of cases related to land reform legislation.

The decline of NP activity does not appeared matched in the experience of other dispute processing institutions. The business of the regular state courts increased steadily throughout this period.

Cases in Civil and Criminal state courts in UP:[17]

Year

Civil cases in subordinate courts

Criminal

Total no. Of persons on trial

source

1960……..

74,958

—————

1961:41

1961………….

75,174

760,704

1961:841

1962………….

71,912

789,670

1962:847

1963………….

71,068

845,982

1963:10,53

1964………….

71,371

879,687

1964:951

1965………….

81,908

895,859

1965:943

1966…………..

85,114

873,023

1966:10,40

1967…………..

——————–

——————–

———————

1968……………

88,762

——————–

1969:49

1969……………

91,859

1,001,249

1969:11,49

1970……………

86,749

1,037,896

1970:12-13, 60[18]

No direct relationship between the regular courts increased activity and the decline in NP activity can be established with the available data.

Other States Data:

Bihar:

The apparent low workload in UP in Uttar Pradesh is matched by low figures provided by Bastedo’s field work in Bihar. 15 NP in a single block heard only 202 cases over a sixteen year period, or an average of 1.25 cases per year for each panchayat. This was one of three blocks where NP had been instituted.

West Bengal:

A final note to the discussion of low and declining workloads in NP is provided by the meagre but interesting statistics for West Bengal. It instituted NP in 1958, holding general elections for Gram, Anchal and Nyaya Panchayat positions. Each Anchal Panchayat, or middle level administrative panchayat in the PR system, was to constitute its NP and thus there was potential for 2,926 Anchal Panchayats in the state. However, NP did not progress that rapidly. No further elections have been held for NP. In 1965-66 there were 49 NP operating. Of these 49, 46 heard 937 cases in that year.[19] By1973 only 13 more NP were in  operation.[20]

Rajasthan:

A profile of disposition rather than of workload is disclosed in the Rajasthan study. In 1961-62 the total number of suits in the NP studied was only 121. The following table provides a profile of the time taken to dispose of a portion of the cases.[21]

TIME FROM FILING TO JUDGMENT IN RAJASTHAN IN NP CASES:

Time taken (days)

cases

301…………………………………………………….

244……………………………………………………..

150-182………………………………………………

110-150……………………………………………..

50100……………………………………………………

50…………………………………………………….

25-50…………………………………………………

15-25…………………………………………………..

14……………………………………………………

1

1

6

7

14

1

8

2

1

Sources: R. Mathur, i. Narain, and A. Sinha, Panchayati Raj in Rajasthan (new Delhi, Impex India, 1966)

Significantly, of the 94 criminal cases in the period 5 June 1961 to 31 march 1962, 51 were tried, 43 remained pending; in the period 1 April 1962 to 31 March 1962, 13 of the 55 criminal cases remained pending. On the other hand for the 5 out of 6 civil suits were completed; in the second period 14 suits were completed.

Official Evaluations of NP system:

The Law commission reports yield the following information:

State

Total no. Of cases for disposal

Pending at the

Close of the year

1954

1955

1954

1955

Andhara

2,468

2,454

622

579

Bihar

31,842

39,908

5,753

7,785

Madhya Pradesh

47,506

46,698

20,022

18,456

Madras (5 Districts)

2,331

598

766

135

Orissa

2,033

3,468

303

539

Rajasthan

66,044

53,909

11,664

10,331

Uttar Pradesh

132,977

179,918

11,481

16,461[22]

Process:

Staffed by lay persons, NP are to promote simplicity and Flexibility in adjudication. They must apply state substantive law but need not to follow all the rules of the civil and criminal procedure codes, although they do have regulation book, “The Nyaya Panchayat Nidhoshika”. There are no pleadings, and lawyers cannot appear. Decisions are to be reached in open meeting and witness examined under oath. These aspects of NP authority and those outlined earlier, reveal the constant tension between informality and formality.

Observation in UP revealed that their actual operation do not correspond to the statutory requirements. Rules are followed or ignored as sarpanch chooses. NP meetings are irregular, quorums usually are not met, and panchas and parties at NP meeting exhibit considerable confusion. The procedure in cases that are filed does not conform to the statutes or rules.

NP are not only inconsistent and somewhat arbitrary but slow. Cases last for month and even for years. The declining use of NP is related to a low level of knowledge about the institution. Many villagers did not know who the Sarpanch was, or where or how often the NP met.

Politics:

It is clear from the study that in UP Sarpanch tend to be traditional leader­­­- men who operate from bases of local respect, wealth and familiarity with the people or their problems. Particularly, in eastern UP, they tend to be thakurs.

A thorough analysis of the caste basis factions and of the regional power structure is required before any definite conclusions can be drawn about the sources of NP in UP. But the brief period of field work did indicate that power is not broadly shared. The closer one is to the village, the more likely it is that caste will be an important factor in factions and power politics. In some parts of UP, middle and lower castes have recently assumed control over GP. Factions influence both NP and GP elections. E.g. in purannagar, an ex- Sarpanch, a Muslim, had been ousted from his position on the NP by the opposite  faction of Hindus.

Factionalism, ignorance and local politics thus combine with other problems to reduce access to NP below the goal sets by its original advocates. Although NP are geographically less remote than the state courts, the long distances between villages and NP Headquarters discourage villagers from lodging complaints. Delays and postponements meant repeated trips to NP every month, perhaps just to find out that it is not meeting. High material costs are reinforced by the high social costs of going to NP. Those who complain to the NP damage their public image and reduce their social standing. Pradhans and villagers criticized those “litigious” and “bad” people who go to NP and felt those were insulting the village.

Alternative Forums:

Caste, faction, stratification and local politics militate against the use of NP as a forum for airing and settling disputes. For most people the forums with social utility are customary unofficial caste panchayats, traditional village leaders, or the regular state courts. Traditional caste panchayats, ad hoc meetings of the GP, and charismatic Lok Adalats operate in UP and elsewhere in northern India because they have combined resources, authority and leadership in ways that are more acceptable and useful to general population.

But it is widely known that cases involving family matters, sexual excursions, marital arrangements, and commensality never leave the village. Factional fights over customary rights, usages and resources within caste are invariably handled by a caste forum first.

It is noteworthy that, in a few villages in UP, scheduled castes were involved in litigation in the regular state courts more often than were other caste groups and were also more active in GP affairs. These groups are seemed to turn outside sources of support. Large number of lawyers broadcast legal advice and information to villages with high percentage of scheduled castes and encourages them to seek justice from regular civil courts, where the outcome, apparently, is more likely to be favourable.[23]

The Gram Nyayalas Bill, 2007

PARLIAMENT OF INDIA

RAJYA SABHA

DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON PERSONNEL, PUBLIC GRIEVANCES, LAW AND JUSTICE

TWENTY SECOND REPORT

ON

THE GRAM NYAYALAYAS BILL, 2007

________________________________________________________________________

(PRESENTED TO THE RAJYA SABHA ON 6TH SEPTEMBER, 2007)

(LAID ON THE TABLE OF THE LOK SABHA ON 6TH SEPTEMBER, 2007)

RAJYA SABHA SECRETARIAT

NEW DELHI

SEPTEMBER, 2007/ BHADRAPADA (SAKA 1929)

C O N T E N T

The Gram Nyayalayas Bill, 2007 (Annexure-A) seeks to establish Gram Nyayalayas for the purpose of providing access to justice, both civil and criminal, to the citizens at the grass-roots level 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 or incidental thereto.

  1. The Gram Nyayalayas Bill, 2007 was introduced in the Rajya Sabha on 15th May, 2007. It was referred by the Chairman, Rajya Sabha to the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice on 17th May, 2007 for examination and report.
  2. The background note, furnished by the Ministry of Law and Justice, on the Bill, stated as follows:

“Article 39-A of the Constitution of India directs the State to secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The government has taken various measures to strengthen judicial system, inter alia, by simplifying the procedural laws; incorporating various alternative dispute resolution mechanisms such as arbitration, conciliation and mediation, conducting of Lok Adalats, etc. The Law Commission of India in its 114th Report on Gram Nyayalaya suggested establishment of Gram Nyayalayas so that speedy, inexpensive and substantial justice could be provided to the common man. The Gram Nyayalayas Bill, 2007 is broadly based on the recommendations of the Law Commission. The Gram Nyayalayas Bill, 2007 after its enactment as an Act of Parliament would ensure justice to the poor at their doorstep.  Setting up of Gram Nyayalayas with mobility in the rural areas would bring to the people of rural areas speedy, affordable and substantial justice.”

  1. The Committee decided to invite views/suggestions from desirious individuals/organisations on the Bill. It, accordingly, authorised the Secretariat to issue a press release inviting views/suggestions. In response to the press release published in major English and Hindi dailies and vernacular newspapers all over India on 3rd June, 2007, a number of representations/memoranda were received.
  2. The Committee forwarded the memoranda so received from the individuals and Organisations to the Ministry of Law and Justice (Legislative Department) for their comments thereon. The comments of the Ministry were received on 14th August, 2007.

4.2. The major points raised in the memoranda are summarized as follows:

  1. Clause 3(1) of the Bill envisages Gram Nyayalayas at intermediate level. This might reduce accessibility to justice through these Nyayalayas as the litigant would have to travel from the village to the block at the expense of time and money.
  2. If the Magistrate transfers the case to his own court as per Clause 25 at the last stage, the trial will get delayed resulting in pendency of cases.
  3. Since lawyers are not barred, the same procedures will creep in as in the case of formal judicial set up.
  4. One of the conciliators provided in Clause 30(3) should be a woman.
  5. Clause 32 would bring in the same rigidity and procedural aspects which exist in the formal judicial set up.
  6. Practical difficulties as to availability of legally qualified persons, their dependability as to being stationed in a rural location, the heavy burden to be borne by the exchequer will be faced. Expenditure will have to be incurred to hold mobile courts and court proceedings in villages and for providing accommodation to Nyayadhikaris and other staff.
  7. Gram Nyayadhikari may be treated a part of the cadre of State Subordinate Judicial Service and it may be the first point of entry in that service. This would ensure their career progression and would attract good talent.
  8. Provision should be made insisting that there should be at least one sitting of Gram Nyayadhikari at each head quarters of Gram Nyayalayas in every month.
  9. Instead of setting up Gram Nyayalayas at the intermediate panchayat level, the need of the hour is to strengthen the existing system of subordinate judiciary, which forms the major chunk of our judicial system, by creating additional courts at the Distt./Tehsil/Taluka level depending upon the extent of pendency of cases to ensure that the litigants get quick justice at reasonable cost. This can be done over a period of, say, five years. Simultaneously, the High Court need to effectively review and monitor the progress of disposal of cases by subordinate judiciary on regular basis. This will entail much less expenditure on the creation of additional infrastructure at the Distt./Tehsil/Taluka level than on the creation of Gram Nyayalayas. In addition, the strength of Judges in the High Courts and the Supreme Court must also be increased to ensure that the disposal of cases gets speeded up to a reasonable extent. Also, we must lay much greater emphasis on the creation of alternative redressal mechanism.

xii. In addition to the provision for appeal included in the Bill a provision for Revision may also be included. It may be noted that in spite of the fact that there is no provision of appeal from the Senior Civil Judge or Additional/Assistant Sessions Judge, High Court may exercise its jurisdiction under Article 226 and 227 of the Constitution.

  1. The highlights of the response of the Legislative Department on the comments/ suggestions contained in the memoranda are as under:

(i) Nyaya Panchayats established by various State Governments under the provisions of respective State Panchayati Raj Legislations are already functioning. The concept of establishment of Gram Nyayalayas are different from Nyaya Panchayats.

(ii)       Gram Nyayalayas, like other subordinate judiciary will be under direct control of the respective High Courts.

(iii)      The approach through this legislation is that simple and non-complicated disputes which could be resolved in a short time will be entrusted to the Gram Nyayalayas.  Endeavor is made to make the Gram Nyayalayas to be effective forum for resolution of disputes emanating from rural areas and to dealing with such disputes, the Gram Nyayalayas will follow the summary procedure as laid down under the procedural codes.

(iv) Establishing Gram Nyayalayas at every Gram Panchayat level would involve a huge expenditure, which is very difficult for the Central Government as well as the State Government to meet. To manage the Gram Nyayalayas financially, it was felt not feasible to consider establishing Gram Nyayalayas at every Gram Panchayat level but only at intermediate Panchayat level. However, anticipating such difficulties, the concept of mobile courts has been incorporated in clause 11 of the Bill.

(v)       Wide publicity about the objects and scope of the Gram Nyayalaya Bill, 2007 has already been given. The same course would be adopted by the Central Government/State Government after its enactment.

Establishment of Nyaya Panchayat and its progress in other parts of country:

  1. The Committee also sought the views of all the State Governments on the provisions of the Bill. The Governments of Gujarat, Uttarakhand, Madhya Pradesh, Maharashtra and NCT of Delhi responded and the gist of their views is as follows:-
  2. Gujarat

(i) Taking into consideration the provisions of the said Bill, it appears that the State Government will be required to constitute as many as 225 Gram Nayayalayas since there are 225 Talukas in the State. Accordingly, 225 Nyayadhikaris will be required to be appointed and if the strength of each of these courts is temporarily placed as 21, then in all 4725 new posts will be required to be created and in view of the provisions of the said Bill, a new separate cadre will come into existence. Clause-11 of the Bill inter alia provides that the Nyayadhikari will be required to hold mobile courts and conduct proceedings in villages. To ensure this, the Nyayadhikaries will have to be provided with mobile vans, drivers etc. further, the State Government will have to see that the Nyayadhikaries and other staff are provided with accommodation and as such the State Government will have to undertake the construction of government quarters for them. Other infrastructure facilities will also be required to be provided to the said Gram Nyayalaya. The State Government is therefore, of the view that for providing such infrastructure facilities, a huge amount running into crores of rupees which may exceed Rs. 300/- crores will have to be spent by the State Government. The State Government is of the view that it would a huge burden on the State Exchequer.

(ii) They have submitted that they are enforcing the scheme of evening Courts, the system of Alternative Dispute Resolution and the concept of Lok Adalats. It has also submitted that a scheme called “Tirth Gram Yojna” has been implemented for rural Gujarat to encourage communal harmony and brotherhood at village level. As regards the financial burden on the State exchequer, it had stated that there is a foreseen additional financial burden which is amounting to approximately Rs. 300 crores and that at present, budgetary provisions for the Legal Department is Rs. 257 crores.

  1. Uttarakhand

(i) There are 95 Panchayats of medium-level in the State. Therefore, 25 Gram Nyayalayas are required to be established as per the proposed Bill. Approximately, an amount of Rs. 1 crore is likely to be spent for the construction of one building for Gram Nyayalaya and a residential house

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