The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

21-26

GRAM NYAYALAYA: A VARIED ADR FOR SOCIAL JUSTICE OF RURAL POOR

Dr. Prasant Kumar Swain*
Abstract: The quest for Justice has been the issue before the mankind since the early days. In the modern organized society, administration of Justice is the paramount duty of the State. Access to Justice is considered as one of the chief Human Rights of any individual. In this regard, every State is creating institutions, the court, to provide justice to its citizen. In India, the Indian Justice system suffers fro m two major defects, namely delay in Justice and costly Justice; which led to a situation in which the poor cannot afford for justice in the court system prevailing in the country. The person those who were denied justice in such situation have nowhere to go. In furtherance of the positive duty casted on the State for providing access to Justice of poor or to provide Justice to the deprived class, mainly to the rural litigants, and by the recommendation of Law commission, the concept of Gra m Nyayalaya is conceived and passed. Prior to this, a number of mechanisms and reforms are undertaken by the Indian Judiciary to address the backlog cases. In this present paper an attempt is made to discuss the efficacy of Gram Nyayalaya to further the concept of social Justice in contrast of other dispute resolution mechanism prevalent in the country. After co mparing the prospect and problems of the Act with other judicial mechanism available, it can be concluded that the Gram Nyayalaya, the court at grass root level is a revolutionary concept of providing access to justice to millions of rural poor living in the remote areas. Although, some practical problems may be detected at the early stage of implementation but the Ernest steps to plug the loopholes may make it more beautiful and effective than the ADR techniques. Key Words: Justice, Speedy, Gra m Nyayalayaa.

Introduction: The quest for Justice has been the issue before the mankind since the early days. In the modern organized society, administration of Justice is the paramount duty of the State. Access to Justice is considered as one of the chief Human Rights of any individual1 . In this regard every State is creating institutions, the court, to provide justice to its citizen. The multiplicity of human needs results conflicting interest. The right consciousness of individual, considerate about their individual interest, has resulted the litigation as a part of their life, need redress through the judicial mechanism (the courts). This problem is compounded by compounding burden of litigations in court, by which the judicial mechanism of the States find it difficult to cope with the case loads. Thus, almost all States are in search of new mechanism for quick resolut ion of the disputes and to lessen the burden of arrear cases in court, so also is the case in India. In India, the Indian Justice system suffers from two major defects, namely delay in Justice and costly Justice; which led to a situation in which the poor cannot afford for justice in the court system prevailing in the country. The person those who were denied justice in such situation have nowhere to go 2 . The fundamental promise made in the Constitution, to secure all its citizen Justice Social, economical and political3 , which is fortified in the directive principles, especially after insertion of Art- 39(A), which directs the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunity and in particular, provide free legal aid, by suitable legislations or schemes or in any other way, to ensure that opportunities for securing Justices are not denied to any citizen by reason of economic or other disabilities. Thus, in furtherance the positive duty casted on the State for providing access to Justice of poor or to provide Justice to the deprived class, mainly to the rural litigants, the concept of The Gram Nyayalaya is conceived and passed4 . Prior to this, a number of mechanisms and reforms are undertaken
* Faculty of Law, Uni versity Law College, Utkal Uni versity, Odisha, INDIA.
1 2

International Covenant on Civil and Political Rights 1966 under Article 2 (3) b N.R. M adhava M enon A talk on Gram Nyayalaya Bill 2007, 8.2.2009, organized by Centre for Public Research and Kerala Law Academy 3 The promise made in the Preamble of Indian Constitution 4 The GramNyayalaya Act, 2008 (Act 4 of 2009 ),received the Presidential assent on 7.1.2009 , came into force on 2.10.2009

22

THE LEGAL ANALYST

[Vol. I

______________________________________________________________________________
by the Indian Judiciary to address the backlog cases. The Alternative Dispute Resolution mechanisms such as conciliation, mediation and Lokadalats are more relevant in this area, where in, speedy disposal, sensitive approach, relaxation of strict rules of evidence and other procedural laws were undertaken to provide speedy and cheap Justice to the poor persons for providing social Justice to citizen. The present Gram Nyayalayas seems to be combination of the objectives of several special courts in contrast to the regular emphasis of adversarial trial. In this present paper an attempt is made to discuss the efficacy of Gram Nyayalaya to further the concept of social Justice in contrast of other dispute resolution mechanism prevalent in the country. The Chief features of Gramnyayalayas are- The Gram Nyayalayas Act, 2008 is passed in the year 20095 to give effect to the mandate under Article 39-A of Indian Constitution and the recommendation made by Law commission of India in its 114th report. The object of this Act is to provide for establishment of Gram nyayalayas. at grass root level for the purpose of providing access to justice to citizens at their door steps and to ensure that the opportunities for securing justice are not denied to any citizen by reason of social, economic and other disabilities and for matters connected therewith or incidental thereto. 6 The Gram nyayalaya is a court of judicial magistrate First class7 , its presiding officer (The Nyaya adhikari8 ) is appointed by the State Government in consultation with High Court 9 and their qualification, salary and condition of service are same as that of judicial magistrate First class 10 . It shall be established for every panchayat at intermediate level or a group of contiguous panchayats at intermediate level in district 11 . It is a mobile court and have to conduct the proceedings in the close proximity of the cause of action 12 , although, the head quarter is located at the head quarter of the intermediate panchayat. These courts have jurisdiction over both civil and criminal cases as specified in schedule I & II of the Act13 , however, the pecuniary jurisdiction in civil matters are to be notified by the High Court 14 and the Central Government and the State Government is empowered to amend the schedule 15 . These nyayalayas are to fallow summary procedure in criminal trials as provided in Cr.P.C (u/s 262(1), 263,264 & 265 of Cr.P.C) with certain modification 16 and in relation to civil matters the Act has provided special procedure 17 , in which it can entertain the suits, claims or disputes, on an application from the parties, accompanied with the prescribed fees subject to maximum fees of rupees 10018 . These nyayalayas are empowered to dismiss the case on default and pass an ex parte decree19 and to dispose the case within 6 months from the date of institution of the case20 . The judgment and order passed by it are deemed to be decree of court 21 and enforced. These courts are not bound by C.P.C. and may accept evidences that may not strictly admissible under Indian Evidence Act, but, bound to fallow the principle of natural justice 22 . It is warranted that these nyayalayas shall at the first instance try to settle the disputes by bringing about conciliation between the parties23 , for this purpose it is to be assisted by conciliators from among the panel of conciliators

5 6

Ibid. Preamble of The Gram Nyayalayas Act 7 The Gram Nyayalayas Act under Section-18 8 Ibid at S. -2 (e) 9 Ibid at S.-5 10 Ibid at S. - 6&7 11 Ibid at S.-3&4 12 Ibid at S.-9 13 Ibid at S.-11&12 14 Ibid at S.-13(2) 15 Ibid at S.-14 16 Ibid at S.-19 17 Ibid at S.-24 18 Ibid at S.-24(1) 19 Ibid at S.-24(5) 20 Ibid at S.-24(8) 21 Ibid at S.-25 22 Ibid at S.-30 23 Ibid at S.-26

2011]

GRAM NYAYALAYA

23

______________________________________________________________________________
prepared by the High Court in this context24 . The power to accept plea bargaining criminal cases are also given to these courts25 . From this court appeals in criminal cases will lie to the Court of Session 26 and in civil matters lie to the District court and in both the cases the appeal is to be heard and disposed within six months27 . During the conduct of criminal cases these nyayalayas are to provide legal aid to the parties28 . The judgment in each trial shall be pronounced in open court and copy of judgment will be supplied to the parties free of cost29 . The rural India is composed of 6, 38,000 villages under 2, 65,000 village panchayats, 4526 panchayat samities and 330 zila parisaads; inhabited by 72.2% of the total population of India 30 ; by socio economic and other disability are not getting access to justice. It has been realized that unless equal justice under the law become a living reality, not a litigation possibility, the Constitution itself may be managed by the Frankensteins monster of constitutional corruption and social justice manacled by legalized injustice 31 . The Act32 is passed to establish a magistrate court at mandal (Block) level. The Gram Nyayalaya a different court as proposed in 114th report of law commission had two objectives. The major objective was to address the pendency of cases in subordinate courts and the other was introduction of participatory justice concept33 . On careful reading of the provisions in the Act, it can be observed that the philosophy of Gramnyayalaya is to provide access to justice to the citizen at their door step and especially to provide inexpensive and quick justice to the rural poor in their own environment 34 . For the avowed purpose, the Act contains some provisions in departure from the general rule of adversarial system of justice. The provisions like summary trial of criminal cases, the court not being bound by the provisions of c.p.c and evidence Act, accepting the plea bargain application, disposal of disputes in a time bound framework and power of enforcing the order as decree of court are the provisions along with the provision of appeal provided in the Act, will certainly helpful to settle the disputes of petty nature by these courts and to light the burden of cases in other subordinate judiciary. The other features, such as to make mobile courts to conduct proceedings in the close proximity of cause of action and the mandate to try for conciliation between the parties at the first instance are furthering the concept of participatory justice and inexpensive justice. As these courts are formed at panchayat level, these are more relevant for rural people. The concept of participatory justice is not new to the Indian citizens, it is found in the indigenous peoples court or the gram sabha organized in different villages 35 . The Gram Sabah is the most ancient and effective institution of dispute resolution in village level, wherein, persons selected by the villagers adjudicate the matters of dispute in a democratic manner, in a common platform 36 . It is pertinent to note here that the gram sabhas are functioning better than the court system and in many critical issues the decision of the gram sabha is called for by the Government also 37 . There are instances that since independence no case is filed in court from some villages of Orissa. Hypothetically, it can be stated that all the disputes of those villages are settled by the village courts. The advantages of participatory justice are that it reduces enmity between the parties in comparison to the judgments in adversarial system of
24 25

Ibid at S.-27 Ibid at S.-20 26 Ibid at S.-33 27 Ibid at S.-34 28 Ibid at S.-21 29 Ibid at S.-22 30 Report, Census India, 2011 31 Sunil Deshta, Lok Adalats in India Genesis and Functioning (Peoples Program for Speedy Justice) (New Delhi: Deep & Deep Publication 1998) at 18 32 The Gram Nyayalaya Act, 2008 hereinafter referred as The Act. 33 114th Report of the Law Commission of India 34 H.R. Bharadwaj, Law M inister, Government of India: While introducing the Gram Nyayalaya Bill 35 Op cit at 12 36 Ibid. 37 The M inistry of Environment, Government of India has given importance to the decision of Gram Sabha for giving environmental clearance to the POSCO project

24

THE LEGAL ANALYST

[Vol. I

______________________________________________________________________________
justice38 . The reason is in the former, the dispute is resolved between the parties and no one is winner or loser in that case, but in adversarial system of justice, the case is ended by declaring one party winner or loser creating further heatedness among the parties. Thus, social harmony among the people of the village or nearby villages can be maintained by quick redressal of the disputes in the close proximity of the cause of action in a democratic manner as it is provided in the Act. Further, for the purpose of dispute resolution in democratic manner and resolving the dispute mutually, many alternative dispute resolution techniques such as Conciliation, Mediation, Lok adalat etc. are adopted in Indian law. Conciliation is a kind of dispute resolution mechanism, which is a process of persuading parties to reach an agreement and plainly not arbitration or the chairman of conciliation is an arbitrator 39 . It involves a positive relationship between the parties to dispute and to direct the parties for a satisfactory common agreement between them. If the party to dispute does not agree to the decision, then, at any point of time he may withdraw from conciliation and go to court for redressal. It is not a legal certified process unless the resolution of dispute is arrived at with a common understanding in them. Mediation is a mechanism, where, a neutral and impartial third party facilitates dialogue in a multistage process to help the parties to reach a conclusive and mutually satisfactory agreement. Mediation is an informal forum chosen by the parties for expeditious disposal of their disputes has by decision of the courts been clothed with legalize of enforceable complexity 40 . It is a voluntary and non-binding process, but a creative alternative to the court system. Lok adalat is a para-judicial institution developed by the people themselves with an Endeavour to find an appropriate structure and procedure in the struggle of common people for social justice. the basic objective of lokadalat is that the adversary system of justice end up in one party declared victor and other party looser does not remove the disputes from the society and may lead to further disputes and social function. So if the disputes can be conciliated in settlement through formal courts the dispute can be ended. Further, the lokadalats are organized in predetermined place, where the legal aid people normally the senior judicial officers assemble to conciliate the disputes in a democratic manner. There is no compulsion on the parties to settle their disputes through lokadalat. Presence of advocates, although not required but they are not debarred. Thus Lok adalat is a forum not only minimize expenses on litigation but it saves valuable time of the parties and witness and facilitate the settlement to the satisfaction of parties41 . The philosophy of the ADR technique and informal court system are to provide justice to the persons interested with amicable settlement and mutual satisfaction with less time consuming and in expensive manner. Especially the village peoples court is providing a forum of justice to the rural poor in their own environment with the concept of participatory justice. On comparing the concept of Gramnyayalaya with all these ADR techniques, it can be stated that the Gramnyayalaya contains the theme of all ADR techniques. The difference in them are - ADR techniques are made by quasi judicial authorities and many times it have no legal sanctity but the Gram Nyayalayas are legally constituted forum which can resolve disputes and by the legal charter it can enforce the order so passed. Further, the ADR technique is normally used to settle the individual disputes or the right in personam or the disputes of civil nature. Thus, as to the philosophy of the ADR and Gram Nyayalaya, they are akin. Moreover, it can be stated that Gram Nyayalaya is a refined concept of ADR technique and it can protect the interest of rural poor in comparison to the other kind of justice delivery system available in India. The Gram Nyayalaya, the latest judicial mechanism to provide access to justice at grass root level although, looks beautiful from its face, but, there may be some practical difficulties in its functioning. The problems may be described as-

N.R.M adhava M enon, Lok Adalat: Peoples Program for Speedy Justice, vol. 13 No.2, 1986 Indian Bar Review at 132 Whartons Law Lexicon. 14th ed1937, at 227 40 Port of Madras v. Engineering Construction Corporation Ltd. (1995) 4 SCALE 742 41 J. K.Ramaswamy :Legal Aid News Letter, Dec 1995
38 39

2011]

GRAM NYAYALAYA

25

______________________________________________________________________________
1) About the adequate number of courts to address whole of rural India- Initially ,It was decided to form Gram Nyayalaya for every 50000 people and estimated 6000 Gram Nyayalaya is to be constituted 42 and at present the government has declared 5000 Gram Nyayalaya is to be constituted 43 . But, from the population and Nyayalaya ratio it can be apprehended that the number of Nyayalayas cannot meet the whole of rural India. So many people cannot get the benefit of these courts. 2) About adequate number of qualified nyayadhikaries- About the appointment of nyaadhikaries, section -6(2) of the Act provides for adequate representation from The SC, ST, Women and Other categories should be maintained, but, from the trend of employment in J.M.F.C of various States it is found that sufficient number of candidates for each category may not be available to be appointed for these posts. Thus, it may lead to vacancy of posts to defeat the object of the Act. 3) Regarding constitution of the courts- It is mentioned that Gram Nyayalaya is the lowest court of subordinate judiciary and integral part of existing judiciary. It is a court of JMFC, the magistrate/presiding officer of this court will be called as Nyayadhikari. But, the court structure provided in Cr.P.C44 does not provide for either Gram Nyayalaya or Nyayadhikari, which may create confusion in the powers of the court. 4) Regarding the court system- It is mentioned that Gram Nyayalaya is to conduct the cases in close proximity of the cause of action and it will be mobile court and the procedure is of aderverserial system of justice and a time frame for judgment is also provided in it. Thus the court must go to the place of cause of action at the request of the aggrieved party to decide the matter. For the time frame, it may not wait for the parties or witness to prove the particular fact in issue and pass order. The question arises, if the opposite party or all the necessary parties in case of civil disputes are not available before that mobile court within the stipulated time or if they want to avoid the court, and the court make an ex-parte decree or it give the judgment from the facts and circumstantial evidences it has. Such a decision cannot give justice to the effected party, there may also be violation of natural justice to them and for which they may go to regular court for enforcement of their right. In such case the object of the Act to reduce the burden of cases in courts will be defeated. 5) In the matter of summary trial and concept of Natural Justice- It is provided in the Act that, all proceedings in criminal cases have been made into summary one. Two important aspects of summary trial are that charges are not framed and only the gist of the evidence is recorded .what could be gained if a full recording of evidence is given up in favor of summary recording if not lip service to the question of speedy disposal. But, by making summary trial, one is giving more room for the Judge to exercise his discretion. Further, concept of Natural Justice provides for fair trial and protection from reasonable bias. In criminal case the duty of the State is to prove the case beyond all reasonable doubts. By summary trial it may amount to not providing sufficient opportunity to the accused for defense and discretion of Judge may turn to arbitrary. 6) Lastly, regarding the duties of Nyayadhikari it is mentioned that the Nyayadhikri has to assist, persuade and conciliate the parties apart from their adjudicative function at the first instance of the case- But, If the Nyayadhikaries are to assist, persuade, conciliate the parties, even with the assistance of the conciliators then they have to be exposed with the individual litigants in a particular litigation and in case the mediation or conciliation of that particular litigation has failed and the aggrieved parties come for adjudication of the matter in the same court. This may lead to a situation of favoritism or bias. Concluding Observation: From the above, it can be concluded that the Gram Nyayalaya, the court of grass root level is a revolutionary concept of providing access to justice to millions of rural poor living in the remote areas. It is the much-needed attempt to provide access to justice at doorstep in furtherance of mandate in Art 39(A) by which social justice to the poor can be provided. Although, philosophically it is closer to the ADR and participatory justice concept but it is more vibrant as it provides for legal sanctity
42 43

Declared in The Gram Nyayalaya Bill, 2007 Declared by M inistry of Law and Justice (Department of Justice) Government of India on 1.10.2009 44 S.-6 and 3(A)of Cr.P.C, 1973

26

THE LEGAL ANALYST

[Vol. I

______________________________________________________________________________
in contrast to the former. Some practical problems may be detected at the early stage of implementation but the Ernest steps to plug the loopholes may make it more beautiful and effective than the ADR techniques. Following are some sensible suggestionsRegarding the number of courts, as it is an early stage of constitution of these new courts, the Government may consider the population court ratio from practical point of view to form as many courts to achieve the objective of the Act. Similarly, as the courts are to be opened in phased manner, so the rule regarding reservation may not be strictly adhered but sufficient steps should be taken to empower the category students/advocates to qualify for the post. This can be done by (1) Assisting different Law colleges to organize remedial courses for these students. (2) Creating awareness among the advocates to join such job, moreover (3) creating a sound legal education system throughout the country. Regarding the anomalies in constitution of courts- Cr.P.C is to be suitably amended to insert Gram Nyayalaya and Nyayadhikari as a cadre of lower judiciary with defined power. Regarding the court system the court must adopt the provision of sufficient and reasonable notice to all parties and must have the power to enforce attendance of the parties before the mobile court. Regarding the summary procedure and maintenance of natural justice, strict guideline for flexibility of recording evidence and use of discretionary power should be prescribed. And lastly, about the conciliation, mediation to be conducted by the judges- more ethical standard moral value should be maintained by the Nyayadhikaries in their work life, especially, while doing some Para judicial act like conciliation etc. It would be better, if the judges are not involved in conciliation directly and do it through the help of gram sabha of that particular locality or conciliators appointed for the purpose and accept only the conciliators report for giving order in case of a successful conciliation among the parties.