Nyaya Panchayats

The Unfinished Task

Although in the Constitution dispensation of justice is inherent in the primary function of panchayats, the issue has so far not been addressed with the clarity and focus that it deserved. Against the backdrop of the recent announcement of the union law minister regarding the establishment of gram nyalayas, this article emphasises the need to revitalise the nyaya panchayats in furtherance of the directive principles of the Constitution. This is also necessary for ensuring a participatory and people-oriented system of justice and for providing greater scope to mediation and mitigating the hardship of the poor.
D BANDYOPADHYAY
t would not be an exaggeration to state that the Indian judicial system is facing a crisis. It is a crisis of number. Figures of pending cases in our courts including the Supreme Court are rather disconcerting. Estimates available from the Supreme Court sources indicate that in court alone as on July 31, 2005 the number of pending cases was 20,948. That is the half yearly (seven months) figure. By the end of 2005, the figure would be around 30,000 as it was 30,151 on December 31, 2004. That is the position at the apex court. In this court the institution of new cases increased by 17 per cent in the year 2004. The rate of disposal rose by 16 per cent leaving a gap of 1 per cent between the institution of new cases and disposal. The backlog increased by 1 per cent in addition to the existing pending cases. Fortunately, in this court the figures are in thousands. In the lower courts including the high courts the numbers are worrisome. Figures from January 1, 1999 to March 31, 2005 showed that pending cases in the high courts were 34.85 lakh. For the lower courts it was 2.48 crore for the same period. Thus, the total pending figure was around 2.84 crore. To this one has to add the pending cases in various administrative tribunals, tax tribunals of the centre and the states, land tribunals and other quasi-judicial bodies and authorities set up to reduce the workload of regular courts. We do not have any figure of pendency in these numerous bodies all over the country. Taking the pendency figures of regular courts, a conservative guess-estimate would be a figure of 3.50 crore. This is the situation after establishing various fast track courts and tribunals for different matters taking away the jurisdiction of high courts for the sake of prompt disposal and removing unbearable congestions in the regular courts. A disquieting feature that comes out of these figures is the growing gap between annual rate of institution of new cases and disposal. For the period that we have figures the average annual number of filing of new cases in the lower courts was around 1.43 crore against which the average annual disposal was 1.34 crore. About a million cases joined the pool of pending cases annually. The picture is grim. There is every danger of the breakdown of the judicial system under the dead load of its own pending cases.

Gram Nyalayas
The response of the legal establishment to this alarming situation had been, predictably, sterile orthodoxy. The union minister of law and justice, H R Bhardwaj, stated (as reported in The Hindu, New Delhi, August 21, 2005) that he would bring a separate law for setting up gram nyalayas.

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This would have nothing to do with the theory and practice of nyaya panchayats (NP) because he would not like to dilute the quality of justice. He further elucidated the point by stating that the details of such a law are being examined by law ministry, but in the name of panchayati raj, let us not adulterate our judicial system. What he had to offer by way of non-adulteration of our hallowed judicial system? He would like to set up at least 2,000 such new courts and recruit 4,000 fresh judges judicial magistrates first class and civil judges (junior division). He would pay for legal aid lawyers to assist the courts and consider sending mobile courts to remote areas. The minister might not have wasted his time and some public funds in reinventing the wheel. There are outfits of legal aid in every district even today. But how are they functioning? Do the poor and the needy in the villages get any help? He should better enquire into the inefficiency and inadequacy of the present set-up before boldly talking about expanding it. Who would pay for the cost of setting up 2,000 courts with 4,000 new judges? States which are facing acute financial difficulties in maintaining the existing judicial infrastructures would not be mightily amused if they were told to bear the extra financial burden from their own resources. Unless the minister by the sly of his hand legalises cronyism in judicial appointments, filling up 4,000 new posts of judges by normal procedure of the Public Service Commissions would take not years but decades, with the vacancies that are already there in ranks of subordinate judiciary. Vacancies in district courts as on November 30, 2004 varied between 26 per cent and 40 per cent, according to the figures available to this author. The proposal of the union law minister is a non-starter, ab inito. But he represents the very powerful lobby of professional lawyers, which is out to protect its moneymaking turf from any shrinkage or any intrusion. The ever grinding rumour mills of Delhi are spreading out a gossip that Rajiv Gandhi himself was not in favour of nyaya panchayats.

Rajiv Gandhi on Nyaya Panchayats

Before proceeding further, it would be necessary to settle the controversy regarding perceived ambivalence of Rajiv Gandhi on nyaya panchayats. According to the published records, his views were quite clear and positive in favour of nyaya panchayats. In his address to the Lok Sabha

while introducing the Constitution (65th Amendment) Bill on August 7, 1989, he emphatically asserted that We are also conscious of our work on panchayat being unfinished because we have not yet dealt with nyaya panchayats. Equally, in urban India, we need to complement responsive administration with quick delivery of justice. The work will be a major priority for our government in the Ninth Lok Sabha (Rajiv Gandhi: Selected Speeches and Writings, Vol V, 1989, Publication Division, Ministry of Information and Broadcasting, GoI, 1991, p 212). Could there be anything more direct, more explicit, more categorical policy commitment in favour of nyaya panchayat? There are nit-pickers who could argue that since the subject of administration of justice was not one of the listed items in the 11th Schedule, panchayats would have nothing to do with it and that nyaya panchayat was a matter of judicial reform. Therefore, panchayats constituted under Part IX of the Constitution should not get involved. To many, the new constitutionally mandated panchayats still remained development only local bodies. This view is wrong. The primary function of panchayats at each tier is the preparation of plans for economic development and social justice [Article 243G(a)]. Inclusion of the term social justice indicates that panchayats may have to get involved with a whole gamut of activities related to social justice which might not be directly a connected development only. Thus, panchayats are not development only institutions. Moreover, items given in the 11th Schedule are only illustrative and not exhaustive. Hence, non-listing of administration of justice would not debar panchayats from dealing with that subject. Rajiv Gandhi made the issue quite clear. In his reply to the debate on 64th and 65th Constitution Amendment Bills at Rajya Sabha on October 13, 1989, he said All that is indicated in the Eleventh and Twelfth Schedules is the path along which effective devolution might be pursued to render panchayats and nagar palikas into vibrant, dynamic, meaningful institutions of local self-government (Rajiv Gandhi Speeches, Vol V, p 219). Hence, adding on additional essential activities including justice dispensation would be fully justified. The term social justice in Article 243G(a) has to be read and understood both conjunctively and disjunctively depending on the context in which it is being interpreted. While preparing for plans for

economic development, one could not do something, which would enhance social injustice. Here it has to be read conjunctively. But when a dalit is oppressed or denied access to a place of worship or discriminated against socially as an untouchable, the term has to be interpreted as a stand alone category to render justice to the victim. Thus social justice would not only mean a package of affirmative actions in economic, social and political arena, but an enforcement of civil rights including providing relief to the victim and initiating appropriate action against the violators of those civil rights. Thus, the concept of dispensation of justice is inherently embedded in the primary function of panchayats under the Article 243G(a). It was true that the issue was not dealt with clarity and focus that it deserved. Hence there is a need for a central enabling legislation on nyaya panchayats, as indicated earlier. Because of the hostile attitude of the union ministry of law and studied ambivalent silence of the ministry of panchayats on the issue of elected nyaya panchayat, it is time that the Planning Commission stepped in to rescue the subject. It should constitute an expert group with task of submitting a report broadly indicating the major contours of the proposed legislation incorporating good features of various state laws on the subject and providing safeguards necessary for the elected lay judicial functionaries to dispense justice fairly. Laws and practices prevailing in the US for ensuring fair justice from the elected judges might be studied and measures suitable for our country may be recommended. After independence the Congress Party appointed a committee on village panchayat in 1954. While commenting on the dispute settlement role, it observed, inter alia, Public opinion of the village used to act as a powerful influence on the parties to the dispute and justice was meted out at the very place where the dispute arose. It was inexpensive and immediate. One direct advantage of this was that normally no attempt was made to fabricate false evidence and even if an attempt was made the same could be easily demolished. The committee recommended nyaya panchayat. In mid-1970s when Indira Gandhi was the prime minister a committee was set up under the chairmanship of justice P N Bhagwati. The Bhagwati Committee report (Report on National Juridicare: Equal Justice Social Justice) recommended retention and invigoration of nyaya panchayat. So did the brief chapter on the

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nyaya panchayat in the Ashok Mehta Committee report on panchayati raj institution. Thus, both before and after the independence, nyaya panchayat had been and continued to be on the agenda of the Indian National Congress. The reason for this short recital on Congress commitment to nyaya panchayat is to make the current law minister aware that he is completely deviating from Congress past and present policy on the nyaya panchayat, perhaps, not being fully aware of its history.

Dispensation of Justice
Dispensation of justice by elected local self-government functionaries is not a new practice. Way back with colonial times the British introduced such a system in some of the provinces of British India. The judicial functions were sometimes performed by special village courts (as in Madras) or by ordinary territorial panchayats. The ordinary panchayats of central provinces (CP), Punjab and UP were mainly occupied with judicial work. In Bengal there were special union benches to try criminal offences and union courts to which civil suits were taken. By 1937, there were 1,521 union benches and 1,338 union courts. The village courts were usually elected by villagers, though in some cases there were indirect elections and nominations (Tinker 1954: 206-07, quoted from The Crisis of the Indian Legal System, by Upendra Baxi, Vikas, New Delhi, 1982, i e: ibid: 298). Colonial rulers were shrewd enough to understand that unless they provided a ready-made legal forum for resolution of village disputes within the village or in its immediate neighbourhood, the formal system would be overburdened necessitating enormous expansion of the regular court system causing immense financial strain on the provinces. Dispensation of justice was done pretty effectively and cheaply at the village level enhancing the luminance of the halo of Pax Britanica. After the independence and, particularly, after the Constitution came into effect the institution of nyaya panchayats went through a roller-coaster effect. Somewhere they became moribund and were abolished. Somewhere there were attempts to reactivate them. Upendra Baxi pointed out that one of the reasons for it was the lack of clarity regarding its position in architecture of the polity. He observed: There is no clarity on the question whether the nyaya panchayats constitute a sub-system of the state administration of justice system or sub-system of the panchayat the local

self-government system. At present nyaya panchayats continue to be both. In relation to Constitution, finances and secretariat the nyaya panchayats constitute a subsystem of panchayats; in their actual operation, they however, are sub-system of the state apparatus of justice whether in term of oversight and review or in relation with police (Baxi, ibid, p 325). In practice the nyaya panchayats were being caught in the cleft between the state departments of panchayats (LSG) and law and justice. They received sustenance from neither. Hence, they suffered from inanition. After the 73rd Constitution Amendment, states of Bihar, Himachal Pradesh, Punjab, Uttar Pradesh and West Bengal provided for nyaya panchayat in their new confirmatory laws or in their confirmatory amendments to old laws. Jammu and Kashmir had their old Act of 1958. Among the states only in Himachal Pradesh nyaya panchayats are functioning satisfactorily. They have generated so much faith among the rural people that HP government gave them matrimonial jurisdiction in addition to normal civil and criminal jurisdictions. West Bengal did not give operational effects to its nyaya panchayat provisions. They only embellish the statute. Provisions of nyaya panchayats in different states vary widely regarding Constitution, jurisdiction, power, authority, etc. The Bihar law provided for a comprehensive legislative framework for administration of justice with appropriate levels of appeal. States of Andhra Pradesh, Gujarat, Haryana and Karnataka made no provision for nyaya panchayats in their post-73rd amendment law, though they had the provisions in their earlier laws. This was a retrograde step taken by these states to disempower the constitutionally mandated panchayats (Mahipal, Village Level Decentralisation of Judicial System, IIPA, New Delhi, 1999, pp 8-9). There is an interesting episode in Andhra Pradesh. Though its panchayat law did not provide for nyaya panchayat, extra legal peoples court established by Peoples War Group in their areas of influence became very popular. Local poor men and women looked upon these fora as genuine courts as they could access them easily and got speedy relief (Mahipal, ibid, p 11). Constitutional validity of organising nyaya panchayat was challenged in respect of the UP Panchayat Act 1947 as amended which included the nyaya panchayat. The matter went up to Supreme Court and it upheld the consitutional validity of nyaya panchayat. It observed, inter alia, the last

contention of the respondent was that the act makes provisions for the nyaya panchayats, whereas the amended provisions of the Constitution do not direct the organisation of such panchayats and, therefore, the act is ultra vires the Constitution. The contention is only to be stated to be rejected. Admittedly, the basis of the organisation of nyaya panchayats under the act is different from the basis of the organisation of the gram panchayats and the functions of two also differ. The nyaya panchayats are in addition to the gram panchayats. The Constitution does not prohibit the establishment of nyaya panchayat. On the other hand, the organisation of nyaya panchayats will be in promotion of directive principles contained in Article 39-A of the Constitution (Supreme Court of India: State of UP and other vs Pradhan Sangh Kshettra Samiti and others: Honble P B Sawant and S C Agarwal JJ; 24.03.1995). With the clear verdict of the Supreme Court that organisation of nyaya panchayats will be in promotion of the directive principles contained in Article 39-A of the Constitution, one wonders under what logic or absence of it the union law minister is rejecting the idea of nyaya panchayat and acting on the outdated and obscuranlist recommendations of the Law Commission of 1986. Creating 2,000 new courts with 4,000 new judges would mean, with more than half a million villages, that one new court on an average would cover 250 villages. That would mean catering to the population of 2.5 development blocks. Each court would have at least 117.33 gram panchayats under its territorial jurisdiction. Effectively, it would mean providing an extra court at the taluka or sub-divisional level. They will remain as distant, as expensive, as inaccessible, as cumbersome, as at present. We have a little over two lakh gram panchayats. If we could organise one nyaya panchayat for two gram panchayats on an
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average there will be one lakh nyaya panchayats in the villages and not at distant taluka, block or sub-divisional headquarters. One of the reasons advocated by the legal establishment against nyaya panchayats is that the elected lay judicial functionaries might not deliver justice in a fair and neutral manner. The elite intelligentsia of the country is easily swayed by this apprehension of gross miscarriage of justice. Experience during the colonial period and the limited experience thereafter did not support this fear. This point was closely looked into by the 14th Report of the Law Commission in 1958 and by the study team of government of India in 1962. The 14th Report totally rejected the argument of nomination of nyaya panchayats as they would not command the respect and confidence of villagers. The study team also concluded that the system of nomination has to be ruled out. Villagers must be given a free choice and the choice lies between the system of direct election and indirect election (Baxi, ibid, p 309).

Selection of Judges
It would be interesting at this point to make a brief reference to the American methods of selecting judges. In US there are five methods of selection of judges. These are: (i) legislative election; (ii) executive appointment with the approval of another body; (iii) partisan election; (iv) nonpartisan election; and (v) merit selection. One of the major grievances of the colonial subjects in America was that the king (home authorities) used to fill up highest seats of justice with bankrupts, bullies and blockheads (R Schmidharser, The Judiciary, p 600). Therefore, the Americans in the late 18th century thought that election of judges by legislators as representatives of the people to be a major step towards democratising the selection of the judges. As of today, 13 states in the US select judges by partisan election and 10 other states by non-partisan election. Thus 46 per cent per cent of states in the US still practises open election for selection of judges. The experience shows that in these 23 states dispensation of justice is in no way inferior to that in other 27 states. There are four major criteria for evaluating the selection procedure in US. First, the selection process should be an open one. Second, selection procedure should provide for the active recruitment of women, blacks and other ethnic groups. Third, a thorough investigative apparatus should be there to check the credentials

of the candidates. And fourth, some form of political accountability should be there to maximise the possibility of selecting good judges. An American commentator observed that the electoral method seemed to provide for the most open selection process in that any one can choose to run for judicial office. The candidates are subject to the scrutiny of bar groups, the media and various citizens organisations, so that a great deal of investigation of the candidates occur. Direct election of judges would appear to be highest embodiment of democratic process and to provide for greatest accountability when limited terms of office require judges to run for reelection. In the American case only the second criterion of affirmative selection cannot be fulfilled (Sheldon Goldman, Judicial Selection, p 595). In the Indian case the second criterion can be fully met by extending the reservation and rotation principles of ordinary panchayats to nyaya panchayats. Thus the elites of India need not have any apprehension about gross abuse of judicial power by elected judicial functionaries. Accountability, through seeking re-election on the expiry of a short enough term (say three to five years) would be a great safety measure against palpably biased judgment. But more importantly the entire US administration of justice both criminal and civil at the trial courts is dependent on jury system. Twelve ordinary lay men and women with ordinary common sense and integrity weigh the evidence tendered before them and gave verdicts. Most Americans feel this is the best method of securing proper justice. So there seems to be no particular difficulty or impediment to have elected lay nyaya panchayats to administer criminal, civil, matrimonial and civil right matters up to the jurisdiction to be provided by law.

Conclusion
In the light of above discussion, it is both desirable and necessary to revitalise the institutions of nyaya panchayat in furtherance of the directive principles contained in the Article 39-A of the Constitution. It is also necessary for ensuring participatory and people-oriented system of justice, and for providing greater scope for mediation, conciliation and compromise mitigating hardship of the particularly the poor. It would also provide justice in vicinity of the habitat. It would relieve the formal professional judiciary of the dead load of mounting pendency of cases. It would facilitate settlement and/or adjudication of

disputes without lawyers. It would save time, hassle, trouble and expenses of the rural litigants. On the top of it, it would bring a degree of accountability at least at the lowest tier of the massive, monolithic, non-accountable judicial hierarchy of our country. To prove to the hilt the commitment of the Congress Party which is now the dominant partner in the ruling UPA at the centre, it would be appropriate to quote from a speech of Sonia Gandhi as the Congress president, delivered at the Lawyers Conference in Mumbai on March 6, 1999. She said, inter alia, judicial reform must, therefore, begin with a conscious decision to vastly increase the numbers range and specialisation of judicial authorities. In the UK there has been for centuries a system of Justices of Peace, eminent local personalities endowed with some, if limited, judicial powers. In the US, judges up to the district level are elected with the result that the administration in justice is initially part of popular democratic process. In India too, we have had a tradition of nyaya panchayats. In fact, the panchayats, in its original conception, was primarily, an instrument of law and order, a means of conciliation and arbitration within the community. When Rajivji launched his hold endeavour for constitutional protection, to the panchayats, he viewed panchayati raj primarily as the most effective means of encouraging economic development and promoting social justice. He had intended to institutionalise nyaya panchayats as the necessary adjunct to the regular panchayats to deliver expeditious and inexpensive justice to the people...Establishing the institutions of grassroot justice will be a top priority for the Congress. Now that the United Progressive Alliance with the Congress as the major associate is in power in the centre, let it redeem the solemn pledge of Rajiv Gandhi given to Parliament on August 7, 1989, by bringing in an enabling central legislation for establishing elected nyaya panchayat throughout the country. Anything else would be a wanton breach of the promise of Rajiv Gandhi to Lok Sabha. -29
[The author acknowledges with thanks the help received from the Rural Litigation and Entitlement Kendra, Dehradun, its chairperson Avdhesh Kaushal and devoted scholars attached to its legal cell for providing data and source materials. The author is also obliged to N J Kurian, director, Council for Social Development, New Delhi, for locating and downloading from Internet papers relating to the American judiciary. The author is responsible for the opinions expressed and mistakes and errors.]

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