Gram Nyayalaya Act, 2008; consorious analyein

INTRODUCTION

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

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

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

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

114TH LAW COMMISSION ON GRAM NYAYALAYAS

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

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

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

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

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

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

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

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

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

The lay Judges should be persons of character and integrity.

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

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

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

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

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

JURISDICTIONAL ASPECTS

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

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

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

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

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

1. Tenancies — protected and concealed and contested.

2. Boundary disputes and encroachment.

3. Right to purchase.

4. Use of common pasture.

5. Entries in revenue records.

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

7. Disputes as to assessment.

II. Property Disputes :

1. Village and farm houses (possession).

2. Sobas.

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

4. Water channels.

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

III. Family Disputes :

1. Marriage.

2. Divorce.

3. Custody of children.

4. Inheritance and succession — share in property.

5. Maintenance.

IV. Other Disputes :

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

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

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

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

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

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

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

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

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

PROCEDURE

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

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

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