Overview of the Article
In this article we will answer the question what led to enactment of Gram Nyayalaya Act even when there was some rural justice delivery system in place. Moving ahead we shall discuss the salient features of the Gram Nyayalayas as given under the Act. Then we see some of the loopholes of the Act and give some suggestions for optimizing its efficiency. Finally, we aim to understand what led that these institutions were back in the news headlines and look out for a possible solution.
History
The village panchayats are a very old and a traditional administrative unit. With the advent of British rule, these institutions began to lose its importance. But during the later part of the British rule several efforts were made to restore these grass root organisations. With the passing of Village Courts Act of 1888 these efforts started to streamline. Also Lord Rippon also known as, father of local administration, made some serious efforts to ensure the smooth functioning of rural justice delivery systems. After the independence, Mahatma Gandhi staunchly proposed the mechanism of decentralization. He thoroughly believed that centralization leads to damaging of the moral will of the individual. Thus he firmly advocated the idea of local self government. Around 45 years after Independence, political leaders felt that efforts to inculcate the local-self governments into the system should be real and not just name sake. To ensure this, 73rd Constitutional Amendment Act, 1992, Article 39-A (inserted by 42nd Amendment Act, 1976) and Article 40 were included in the Constitution of India.
Article 39-A
The State shall 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.
Article 40
Organisation of village panchayats The State shall 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.
With the above Articles and the 73rd amendment act, the village panchayats were fortunate to get constitutional status. The Panchayati Raj now works or functions as a system of governance in which gram panchayats are the basic units. This system has three levels: Gram Panchayats (village level), Mandal Parishad or Block Samiti (block level) and Zila Parishad (district level).
Need for a Legislation
Historically, the panchayats were formed to provide easy access to justice at the rural level. The decentralization of power not only led to strengthening of democracy but it also helped to find solutions to the problems at the base level only. The panchayats with time began to perform several basic functions of daily life. Some of these were problems related to water, electricity, and educational facilities, improvement in agriculture etc. This chain of judicial system provided relief on the shoulders of ordinary courts as they lift a part of burden.
Just like there are only a few things which do not have both positives and negatives, Panchayats also have their own advantages and disadvantages. Some of the maladies that Panchayats presented are as follows:
- These institutions were driven majorly by community considerations. The decisions of ‘Panchs’ or ‘Sarpanches’ were mostly influenced on Jaati and economic considerations. Therefore, the chances of justice getting justice were very low.
- These institutions were operated by laymen, thus ignorant of the legal procedures, rules and policies.
- Whenever there was a dispute between two parties of two different villages; the panchayats generally passed the order in favour of resident of their village.
- Undemocratic composition was also seen as one of the disadvantage. Sometimes it used to happen that there were indirect elections or the posts reserved for women were not given to them. The posts reserved for women were mostly headed by their husbands or in some cases by their sons. That increased the possibility of corruption and bribery, which gradually lead to negation of democratic principles.
- Panchayati raj system presented some administrative problems as well. There were tendencies of politicization of local administration, lack of proper promotional opportunities for the administrative personnel, disinterested attitude of the government servants towards development programmes etc.
- Lack of cordial relations between the officials and the people is widely evident. Panchayati raj system aimed to increase the participation of people in policy making and justice delivery system. But in reality this hardly happens because the administrative and technical positions are predominantly held by the government officials. By and large there is lack of proper coordination and cooperation among the officials like Block Development Officers and people.
Due to all these prevalent issues, the 11th Law Commission headed by Justice D.A. Desai, in its 114th report dealt with Gram Nyayalayas. The report suggested some measures and safeguards designed to ensure impartial justice delivery system. But the Government of India introduced the Gram Nyayalaya Bill in the year 2007 to give effect to the recommendations given by the 11th Law Commission. As a result of which Gram Nyayalaya Act, 2008 was enacted.
The Gram Nyayalaya Act 2008
The Gram Nyayalaya Act, 2008 is an act of Parliament of India enacted for establishment of Gram Nyayalaya or village courts for speedy and easy access to justice. The Act came into force from 2nd October, 2009. ‘Gram’ stands for village; ‘nyaya’ stands for justice and ‘alya’ stands for house or centre.
Salient features of the Act:
Establishment
- Under section 3(1) of the Act, it is for the state governments to establish Gram Nyayalayas in consultation with the High Courts of the respective State.
- The Gram Nyayalayas are established generally at the headquarters of the Panchayats at intermediate level.
- Or a group of bordering panchayats in a district where there are no panchayats at the intermediate level.
Nature
- These courts or nyayalayas can function in the form of mobile courts at any place within the jurisdiction of such nyayalayas, after giving wide publicity to that regards. Mobile courts are the courts which travel from one place to another and dispose of the cases at that place only. This was done to ensure faster and doorstep justice delivery.
- Headquarters:
- The headquarters shall be located at the headquarters of intermediate Panchayat in which Gram Nyayalaya is established.
- Headquarters can be different only via a notification as given by the State Government.
Composition
- Gram Nyayalayas are presided by a “Nyayadhikari”. They are considered as ‘public servants’ under section 21 of IPC.
- They are appointed by the State Government in consultation with the respective High Courts.
- A Judicial Magistrate of First Class is entitled to hold the post of a nyayadhikhari.
- State governments from time to time by a notification can make representations from Schedule Castes, Schedule Tribes or among the women or such other class or community mandatory.
Jurisdiction:
- Any Gram Nyayalaya will have jurisdiction over an area specified by a notification by the State Government in consultation with the High Court.
- They have jurisdiction over both civil and criminal matters. Nature of such suits is prescribed in the First, Second and the Third schedule of the Act.
It is to be noted that Central and State governments can make amendments in the First and the Second Schedule, as per their respective legislative competence.
- These associations have jurisdictions to try offences of theft and stolen property; but the value of the property should not exceed more than rupees twenty thousand.
- The pecuniary jurisdiction of these nyayalayas is fixed by the respective High Courts.
Trial and filing procedure
- Offences are to be tried in a summary procedure in accordance with Chapter XXI of the Code of Criminal Procedure, 1973.
- The order should be passed in the form of a decree and to avoid a delay in the execution of the same, Gram Nyayalayas shall follow a summary procedure for its execution.
- The Act also allows plea bargaining under Chapter XXIA of CrPC.
- Civil suits are proceeded on a daily basis, with limited adjournments. They are to be disposed off within a period of six months from the date of institution of the suit.
- Gram Nyayalayas have been given the power to accept certain evidences which would not have been accepted under the Indian Evidence Act.
- These institutions are allowed to follow a special procedure in civil matters, in a manner it may deem just and reasonable in the interest of justice.
- These organisations try to settle the disputes by conciliation at the first instance, and for this it shall make use of conciliators appointed for the same purpose.
Court fee
- The fees should not exceed Rs. 100 irrespective of the value of the property in civil cases.
- In criminal cases, the nyayalayas adjudicate upon a matter only after a police complaint.
- Appellate procedure:
- Appeals in criminal cases can be made to Sessions Court in the respective jurisdiction. Similarly, appeals in civil matters can be made to District Courts.
- But it is to be noted that appeals are to be made within a period of one month from the date of judgement.
- Salaries and allowances:
- Salaries and other emoluments of the nyayadhikaris were same as Judicial Magistrate First Class.
Miscellaneous facts
- The first Gram Nyayalaya was established in the Bassi town of Rajasthan.
- Union Law and Justice Minister M Veerappa Moliy inaugurated this nyayalaya in the presence of the Chief Minister Ashok Gehlot.
- Maximum number of Gram Nyayalayas are in the state of Madhya Pradesh, followed by Rajasthan and then Maharashtra.
Legal Lacunae
- Namesake entities: By far only 11 states have taken out notifications for setting up of Gram Nyayalayas and out of these only 3 have established them. The country has only 208 such courts which are fully functional as compared to the target of 2500. This target was spelt out in the 12th Five year plan for the period of 2009-10 to 2017-18. This simply suggests that Gram Nyayalayas have utterly failed in realizing the dream of doorstep justice delivery. This makes Gram Nyayalayas a mere ‘namesake entity in Judicial System’.
- Absence of specialized cadre: In the absence of a separate or a specialized cadre for Gram Nyayalayas as ‘gram nyayadhikaris’, the nyayalayas are presided over by First Class Judicial Magistrates or Civil Judges (Grade I or grade II). In a few cases there is a mere possibility that these are headed by Chief Judicial Magistrates; which overburdens them.
- Less publicity: Most of the stakeholders like litigants, police, and lawyers are not actually aware about these institutions and what they actually deem to do. There is no effort on the part of the government as well in publicizing the role of the gram nyayalayas. Absence of seminars or conferences highlighting the aim of these institutions further adds fuel to the fire. As a result the different sections of society remain unaware of the functions these organisations perform.
- Not established in true sense: The legislation was enacted to ensure speedy and door-to –door justice delivery to the poor litigants who cannot afford to go to the court. For this purpose, the legislation requires that the Gram Nyayalayas be established at such a location which is in reach of the villagers and be able provide maximum benefit to them. But, in some cases the Nyayalayas are established in cities or towns along with other regular courts exercising the same jurisdiction. As a result of which several genuine litigants are denied of the benefits that would have otherwise been provided. One such example is a Gram Nyayalaya in Indore functions within the systematic court premises.
- Uncertainty in Jurisdiction: There is a lot of ambiguity and confusion regarding the specific jurisdiction of the Gram Nyayalayas. This is because of the fact that there exist several other alternative forums, for example, labour courts or family courts to deal with these matters. Thus, it is till date not very clear as to what is the exact jurisdiction of these institutions.
- No actual burden reduced: One of the main objectives of the act was to lessen the pendency and burden on the lower courts in a respective district. But a study revealed that this was not the actual case or outcome. It was pointed out that the number of cases disposed off by Gram Nyayalayas was almost negligible in number. This is reality did not made any substantial difference in the pendency rate nor it lessened the burden to that extent. Thus, Gram Nyayalayas in real sense failed in achieving the objective of less pendency. In some cases it even increased the burden rather than reducing it. This was when these organisations were headed by Chief Judicial Magistrate or Civil Judges.
- Diversionary strategies: These organisations aimed at diverting the existing disputes from the criminal and civil court system and thus speed up justice delivery process. But in reality, these would foster a new arena wherein the disputes that were earlier not part of the legal system will now become a part of it. These are those disputes which were earlier resolved by other alternative dispute resolution mechanisms. Some analysts believe that gram nyayalayas have helped in reducing the burden through these diversionary strategies. But there has been no comprehensive assessment regarding the success of these strategies in reducing the delay.
- Inadequacy of infrastructure: It is a firm belief that denial of timely justice implies denial of justice itself. Timely disposal of cases is necessary for maintaining the rule of law of any place. If timely justice is not made available to the citizens of a state then socio-economic development also gets retarded. But this disposal of timely justice is not possible with the minimal budgetary allocation. Time and again Chief Justices have pointed out that this petty budgetary allocation in seriously insufficient to improve infrastructure. Now for example, Gram Nyayalayas were established to deliver doorstep justice. But in some states these are not even established. Thus, in order to reach out to marginalized sections of society and reduce the pendency, setting up of Gram Nyayalayas with adequate infrastructure is mandatory.
- Security threats: Sometimes Nyayalayas are situated at isolated locations, for example, near forests or at such locations where crime rates are high then it results in a threat to the security of the ‘Nyayadhikaris’ or instill a sense of fear among them. As a result they do not go to Nyayalayas and therefore justice is denied to the general public.
- Wastage of resources: Majority of states have Courts at the Taluk level which are more easily accessible and known to the villagers. This simply wastes the resources for setting up of Gram Nyayalayas at the same places. Rather resources should be utilized in establishing Nyayalayas at a place where necessary.
- Politicization of the system: It has been pointed out that the conciliators can be social workers or other groups of people as may deem necessary except for the lawyers. But this will simply lead to more control by the political factions of the society. This will indeed bring in the undesired involvement of the executive and will lead to politicization of the judicial system.
Possible solutions
- Setting up of more Gram Nyayalayas: As we already know that the current statistics are a meager of the recommended ones. So, an effort should be made to realise the goal of speedy justice by establishing more Gram Nyayalayas for rural poor. It must also be ensured that these are accessible to the villagers without any discomfort.
- A system of training is required: It is absolutely unnecessary that a system of training is established. Apart from the legal and other procedural training; the Nyayadhikaris should also be trained in local languages.
- Creation of a regular cadre: Some of the Nyayadhikaris have opinioned that creation of a regular cadre can be a futile strategy because of the lack of chances of promotion. Thus, a solution is suggested that the new cadre coming in for the posts of Civil Judges and First Class Judicial Magistrates should compulsorily for some time preside over the Gram Nyayalayas.
- Increasing the amount of awareness: Various factions of society like lawyers, litigants, police personnel and other social workers associated as conciliators should get fully aware with the purpose and functions of the Gram Nyayalayas. The Government should also take initiatives like organization of radio programmes or seminars or conferences for generating awareness.
- Establishment of permanent Nyayalayas: As per the provisions of the Act, Gram Nyayalayas are to be established in every Panchayats or at the intermediate level of contiguous Panchayats. But the criterion for establishment should be on the basis on the number of cases or disputes that generally arise in a particular area. It must also be taken into consideration if there are any courts with the parallel jurisdiction then the Nyayalayas must not be established in those regions.
- Infrastructure and security related concerns: These concerns are also equally important. There must be a provision of adequate housing for the officials concerned. A permanent building of the Gram Nyayalayas office must also be encouraged. Similar to these concerns the security of the officials should also be looked out appropriately.
- Ambiguity of Jurisdiction to be removed: Some of the analysts have pointed out that generally the uncertainty in the jurisdiction of these institutions renders them useless. So it is advised that the jurisdiction of these Nyayalayas should be redefined and explicitly charted out in the Act. For this necessary amendments in the Act should be done at the earliest.
- Separate emoluments and allowances should be granted: The officials of these Nyayalayas should be provided incentives or allowances in terms of social security or other schemes for the welfare of these functionaries. This will encourage more people to pursue this field and will thus help in realizing the aim of justice delivery at the lower levels.
Recent news related to Gram Nyayalayas
Filing of the petition against inadequate establishment of Gram Nyayalayas
- Recently, an NGO, The National Federation of Societies for Fast Justice filed a PIL under Article 39A in the Hon’ble Supreme Court.
- The petitioners claimed that as per the 12th Five-year Plan a total of 2500 gram Nyayalayas were estimated. But a mere of 320 were notified by the State Governments and out of which only 208 are operational.
- The petition also said that 18 states have failed to constitute any Gram Nyayalayas over the past 10 years.
- This simply renders the objective of speedy justice delivery ineffective.
Decision of the Supreme Court
- A bench headed by Hon’ble Justice N.V. Ramana and Ajay Rastogi took into account that expect Kerala, Rajasthan and Maharashtra, Gram Nyayalayas are not functioned in many states.
- The Court also observed that states like Gujarat, Haryana, Telangana, West Bengal, Uttarakhand, Chhattisgarh and Odisha are yet to file their affidavits even after the apex court’s order last October.
- In view of the above, the Court directed the states, who have not yet issued the notification, to issue the same.
- The Supreme Court finally said that the State Governments are given a time of ‘FOUR WEEKS’ to issue the notification of establishing ‘Gram Nyayalayas’ and also asked High Courts to accelerate the consultation with the authorized departments on the same.
Conclusion
Despite all these shortcomings, Gram Nyayalayas still remain a very important chain in the justice delivery system. These institutions play a key role in delivering justice to the fourth tier. They tend to make this justice accessible to the marginalized sections of society at a very minimal cost. It has been said that various measures like simplifying procedural laws, establishing fast track courts, setting up of alternate dispute redressal mechanisms and providing free legal aid are already taken in this regard. Despite these measures, access to justice and inexpensive settlement of disputes still remains a dream for the leaders. Thus it has been pointed out that to uphold the constitutional ideals of free legal aid and justice to all is possible only with the help of Gram Nyayalayas. The Preamble of the Act also envisions access to justice at the doorstep and ensuring that opportunities of getting justice are not denied to anyone by the reason of disabilities whatsoever. Above everything else these institutions just require to be a bit more concrete and well planned. The concerned authorities should review and firmly act upon the loopholes that the Act presents. Ultimately, equality and justice are the two key components of a modern, democratic and a constitution adhering nation.
This Article is authored by:- Bhoomika ( MCMDAV-36, Chd.)