commentary
of behaviour and thinking. They are not
necessarily filled with self-doubt and angst
and waiting to come out, but are generally
comfortable in their places: be it a labora-
tory, an ivory tower, or the pedestal on
which they have been placed. There are
frequently conversations within science
(and society) regarding science itself, the
nature of GM and the role of technology.
Such conversations, while insufficient can
be encouraged and supported by good
m­edia. But technical reports such as the re-
cent one from the academies along with
the polarisation fanned by the media only
quell debate. And that is an injustice to
both science and society.
Accessing Injustice:
The Gram Nyayalayas Act, 2008
Menaka Guruswamy, Aditya Singh
The Gram Nyayalayas Act, 2008
moves Indian citizens with small
claims, who live in rural areas,
out of the adversarial system with
its procedural guarantees. As a
statute with limited procedural
guarantees to adjudicate allegedly
small claims, including those
that implicate a plethora of social
welfare legislations, this Act
compromises the promises of
the Constitution.
We are grateful to Bipin Aspatwar,
Marc Galanter, Vikramaditya Khanna,
Madhav Khosla, and Jayanth Krishnan for
their incisive comments.
Menaka Guruswamy (menaka.guruswamy@
gmail.com) practises law at the Supreme Court
of India, Aditya Singh (mail.adityasingh@
gmail.com) is a final year student at the National
Academy of Legal Studies and Research,
University of Law, Hyderabad.
16
Notes
1 Bacillus thuringiensis (or Bt) is a bacteria used
by farmers as an alternative to pesticides. The
gene for the Cry toxins are extracted and insert-
ed into plants in the case of Bt transgene contain-
ing plants.
2 A transgene is a gene or genetic material that is
transferred from one organism to another using
various techniques. More specifically, it is often
used to describe the segment of DNA that is trans-
ferred and can code for a particular RNA or pro-
tein. This foreign insert may alter the expression
of a gene or trait in the organism.
3 A report by Andow A David, Bt Brinjal: The Scope
and Adequacy of the GEAC Environmental Risk As-
sessment, is based on the analysis of the expert
committee and various supporting materials sub-
mitted to seek approval for commercialisation of
Bt-brinjal. “The main thesis of the report is that
the GEAC set too narrow a scope for environmental
risk assessment of hybrid brinjal”.
4 Plenty of articles have been written on epi­
genetics. For special issues on the subject, see
E
quality 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 admini­
stration 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 prob-
lems 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 (hereinafter referred to as the Act).
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 dis­
connected rural citizen, who gets primary
october 23, 2010  vol xlv no 43  EPW   Economic & Political Weekly
N­ature, Vol 447, Issue 714, 24 May 2007 and
S­cience, 293, Issue 5532, 10 August 2001.
References
Gurien-Sherman, Doug (2009): Failure to Yield,
R­eport by the Union of Concerned Scientists,
Cambridge, MA.
International Assessment of Agricultural Science and
Technology for Development (2009): Agriculture
at a Crossroads: The Global Report (Island Press).
Kumar, Ananda (2009): “Br-Brinjal: A Pioneering Push”,
Biotech News, Department of Biotechnology,
December.
Krimsky, Sheldon (2004): Science in the Private Inter-
est: Has the Lure of Profits Corrupted Biomedical
Research? Rowman & Littlefield Publishers, Inc.
Pearson, Helen (2006): “What Is a Gene?” Nature,
Vol 44, 399-401.
Sood, A K, M Vijayan, P S Koel, M Rai, K K Talwar and
A Datta (2010): “Inter-academy Report on GM
Crop”, September, unpublished, downloadable
from http://bit.ly/cQbyCI.
a­ ccess to forums that focus primarily on
disposing of their claims, minus the appli-
cation 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 opportuni-
ties for securing 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 this
would bring the justice delivery system
closer to rural citizens. Since a small
number of gram nyayalayas have become
operational from 2 October 2009, infor-
mation on the implementation of these
“village courts” is not available. Hence,
we discuss the provisions of the Act and
the problems associated with it.
The Gram Nyayalayas Act, 2008
This Act is not the first legislative attempt
at establishing a hybrid or informal tribu-
nal like system, ostensibly located in some
version of an indigenous system of dispute
resolution. Nyaya panchayats and lok adalats
were created with the same objective of
dispensing speedy justice in informal set-
tings. Galanter and Krishnan (2004: 789)
document and analyse the experiences
in nyaya panchayats and lok adalats
(people’s tribunals). Both forums, derived
according to them from, “sentimental and

symbolic support from appeal to the
virtues of the indigenous system” (ibid).
They note that the informalism of the lok
adalat with its emphasis on compromise
and speedy disposal could disadvantage
weaker parties.
The lok adalats are not bound by of
Civil Procedure Code 1908 (CPC) and the
Indian Evidence Act, 1872. According to
the authors, lok adalat judges appeared
to be “overbearing and coercive” to the
parties before them – especially poor and
un-­represented parties. The authors ob-
serve that critics of the lok adalats “see in
these moves portents of a dismantling of
legality in favour of paternalistic, intui-
tive kadi justice for the poor”. They add
further that
the absence of appeals, the exclusion of
lawyers, and the shift of decisional stand-
ards from ‘legal principles’ to ‘principles of
justice’ suggest a major enlargement of the
presiding judge’s discretion and robust faith
that the poor have more to gain from benign
paternalism than from juristic or popular
legality (ibid).
The gram nyayalayas capture all the
weaknesses of the nyaya panchayats and
lok adalats, and the problems associated
with these forums would apply equally to
this most recent version of the ostensible
indigenous dispute resolution forum.
Intent and Jurisdiction
The Act provides for the establishment of
gram nyayalayas for the purpose of pro-
viding access to justice and to ensure that
speedy justice is not denied to any citizen
for reasons of social, economic or other
disabilities. The gram nyayalaya will be
the lowest court of subordinate judiciary
in a state and shall be in addition to the
regular civil and criminal courts. The Act
is broadly based on the recommendations
of the Law Commission of India, which
had in its 114th report suggested the estab-
lishment of such courts in order to “pro-
vide speedy, inexpensive and substantial
justice to the common man”.
Under the statute, gram nyayalayas are
to be established by the state government
in consultation with the high court. These
are to be established for every panchayat
at the intermediate level and will be
headed by a nyayadhikari, who shall have
the qualifications of a first class judicial
Economic & Political Weekly  EPW   october 23, 2010  vol xlv no 43
magistrate. The nyayadhikari is required
to periodically visit the villages under her
­jurisdiction and conduct proceedings in
close proximity to the place where the
parties normally reside, thus functioning
as a mobile court.
Gram nyayalayas have both civil and
criminal jurisdiction much like ordinary
lower courts. It may take cognisance of an
offence on a complaint or on a police re-
port and shall try all offences specified in
Part I of the First Schedule and Part II of
that Schedule and also try all such offenc-
es or grant such relief under the state acts
which may be notified by the state govern-
ment. Section 13 lays down the civil juris-
diction of the gram nyayalayas and pro-
vides that it shall have jurisdiction to try
all original suits and proceedings of a civil
nature falling under the classes of dis-
putes specified in Part I of the Second
Schedule and try all claims and disputes
which may be notified by the central gov-
ernment and by the state government.
Inadequacies of Gram Nyayalayas
The Act contains provisions which are
likely to result in the unjust exclusion of
the impoverished from just legal processes
thereby restricting access to justice.
(i) Nature of Offences within the
­Domain of Gram Nyayalayas: Schedule I
of the Act lists those offences which can be
adjudicated by the gram nyayalayas.
Within its criminal jurisdiction, theft;
concealment, disposal and receiving of
stolen property; and insult with intent to
provoke a breach of the peace are some of
the offences that can be decided by these
courts. Vitally, offences which are not
punishable with death, imprisonment for
life or imprisonment for a term exceeding
two years are also included within the
scope of its jurisdiction.
Part II of this Schedule lists some stat-
utes and offences committed under these
Acts within the ambit of the criminal juris-
diction of the gram nyayalayas. Some of
these include the Payment of Wages Act,
1936, the Minimum Wages Act, 1948, the
Protection of Civil Rights Act, 1955, the
Bonded Labour System (Abolition) Act,
1976, the Equal Remuneration Act, 1976
and the Protection of Women from
­Domestic Violence Act, 2005. Schedule II
commentary
includes most property disputes and
claims arising from Payment of Wages
Act, 1936 and Minimum Wages Act, 1948
within the scope of civil jurisdiction of the
Nyayalaya. Evidently, most of these legis-
lations directly affect the impoverished.
These are social welfare legislations
which require careful and sophisticated
adjudication. That this Act does not incor-
porate proper procedures is even more
troubling, given the nature of disputes
that will come up for consideration of
these courts.
(ii) Circumscribed Right of Appeal: The
most problematic part of the Act – Part VII
deals with appeals. Section 33 provides
for appeals in criminal cases. Subsection
(1) provides that notwithstanding any-
thing contained in the CrPC or any other
law, no appeal shall lie from any judg-
ment, sentence or order of a gram nyaya-
laya except as provided hereunder.
The Act already prevents appeals in
cases where the “accused person has
pleaded guilty” or where the gram nyaya-
laya has passed a sentence only of fine not
exceeding Rs 1,000. This leads up to the
legally unjustifiable, Section 34 (2) that
provides that no appeal shall lie from any
judgment or order passed by the gram
nyayalaya (a) with the consent of the par-
ties; (b) where the amount or value of the
subject matter of a suit, claim or dispute
does not exceed Rs 1,000; (c) except on a
question of law, where the amount or value
of the subject matter of such suit, claim or
dispute does not exceed Rs 5,000.
It is crucial to note that Sections 33 and
34 provide for appeals in certain cases to
the court of session and the district court,
respectively. Hence, a party can appeal
the nyayadhikari’s decision to a sessions
court for criminal matters which must be
decided in that forum by that judge within
six months. For civil matters the appeal
should be directed to district court which
must decide it within six months.
However, the Act prevents any further
appeal after the decision of the court of
session or the district court. Section 33 (7)
provides that the decision of the court of
session shall be final and no appeal or
­revision shall lie from the decision of the
court of session. Similarly, Section 34 (6)
provides that the decision of the district
17
commentary
court shall be final and no appeal or revi-
sion shall lie from such decision. The
­revised version of the bill that was finally
enacted also contains a proviso which
­allows for availing of judicial remedies
available under Articles 32 and 226 of the
Constitution. Therefore, for almost all
matters that will be decided by the gram
nyayalayas, there can be only one addi-
tional appeal to subordinate courts.
Within the part of the Act, there are
also concerns regarding the time limit im-
posed on filing an appeal against the deci-
sion of the gram nyayalaya. As per Section
33 (4), every appeal shall be preferred
within a period of 30 days from the date of
judgment, sentence or order of a gram
nyayalaya in a criminal case. This is simi-
lar to Section 34 (3) which lays down the
same restrictions for civil cases. The Par-
liamentary Committee which commented
on the 2007 Gram Nyayalaya bill had criti-
cised this provision and stated that “there
were no valid reasons as to why the period
of limitation provided in the Criminal and
Civil Procedure Codes should not be made
applicable” to gram nyayalayas (Department
Related Parliamentary Standing Commit-
tee: 26). In spite of these recommenda-
tions, the Act continues to set a bar on the
time period which is less than the time
prescribed in the procedural laws. This is
­another example of the Act compromising
on proper procedure and is bound to cre-
ate difficulties for parties involved in liti-
gation at the level of gram nyayalayas.
(iii) Summary Procedure and Plea
­Bargaining: Gram nyayalayas shall fol-
low summary trial procedure in criminal
cases. This runs contra to the CrPC that
normally governs all criminal trials in the
formal court system. Section 20 provides
that any person accused of an offence may
file an application for plea-bargaining in
the gram nyayalaya in which such offence
is pending trial and the gram nyayalaya
shall dispose of the case in accordance
with the provisions of the CrPC. This pro-
vision for plea-bargaining must be read in
the context of Section 33(2) (a) which pro-
vides that no appeal shall lie where an ac-
cused person has pleaded guilty and has
been convicted on such plea.
Further, plea-bargaining has been
­introduced in the CrPC, which governs the
18
adjudication of criminal disputes in the
court system. The Law Commission of India
in its 142nd report had recommended a
“competent authority”, a metropolitan
judge or magistrate of the first class or two
retired high court judges (depending on
the gravity of the offence) would be ap-
pointed as plea judges. The accused would
file an application for a plea bargain to the
“plea” judge. This would ensure that the
accused could still get a fair trial from the
regular judge should the plea bargain not
go through (Tewari and Agarwal 2006).
The 154th Law Commission felt that in
the Indian context bargaining with a
prosecutor would be hazardous and a
competent authority would safeguard the
principle of a fair trial. Unfortunately, the
Gram Nyayalayas Act does not provide
for such a competent authority. The appli-
cation for plea-bargaining is to be filed
with the court ­itself. Therefore, if such
an application is rejected, this would in
turn have an undue bearing when the
trial is conducted.
(iv) ‘Interests of Justice’: While the
scheme of the Act which details the special
procedure in civil disputes is not entirely
undesirable, it is worthwhile to appreciate
that Section 24 (7) provides that the pro-
ceedings shall, “as far as practicable”, be
consistent with the interests of justice.
This provision employs non-binding
­language and is conditional while dealing
with an issue of prime importance. Any
proceeding in a court of law must be con-
sistent with the interests of justice in all
circumstances; however, this provision
­allows for non-compliance when it is
not “practicable”.
(v) Civil Court sans Civil Procedure: In
terms of civil suits, the gram nyayalaya
has the power of a civil court, and the
judgment passed by it shall be executed as
if it were a decree of a civil court. How­
ever, the forum shall not be bound by the
procedure in respect of execution of a de-
cree as provided in the CPC and it shall be
guided by the principles of natural justice.
Section 30 of the Act dealing with the
application of the Indian Evidence Act,
1872, provides that a gram nyayalaya may
­receive as evidence any report, statement,
document, information or matter that
october 23, 2010  vol xlv no 43  EPW   Economic & Political Weekly
may, in its opinion, assist it to deal effectu-
ally with a dispute, whether or not the
same would be otherwise relevant or
­admissible under the said Act.
The Act envisages day to day hearing
with summary procedure and pronounce-
ment of judgment within 15 weeks from
the date of the last hearing. The proceedings
shall be in one of the official languages of
the state other than English, as far as prac-
ticable. The parties may argue their own case
but they also reserve the right to engage a
lawyer to represent them. The Act also
places a duty on the gram nyayalayas to
provide for conciliation and settle­ment of
civil disputes for which they shall follow
the procedure prescribed by the high court.
(vi) Police Assistance: The Act also seeks
to provide for assistance of police to the
gram nyayalayas, wherein every police
officer functioning within the local limits
of jurisdiction of such a court shall be
bound to assist in the exercise of its lawful
­authority. Further, it binds the police
­officer or any other government servant to
provide assistance when so directed by
these courts. Galanter and Krishnan docu-
ment the manner in which police assist-
ance has affected the functioning of the
Electricity Lok Adalats (Galanter and
Krishnan 2004: 812). The police, they
note, in fact appear and advocate for the
electricity companies. They point out how
the police representatives act as the lead
advocates not only in criminal matters but
also in several other billing disputes
(ibid). The authors refer to Julia Eckert’s
description of the Shiv Sena courts in Ma-
harashtra, where police representatives
act as interpreters and arbitrators of the
law (ibid). Given the similarity in the set-
ting of lok adalats and gram nyayalayas,
there are bound to be similar difficulties
with the explicit inclusion of a provision
warranting police assistance in the Act. In
a system which compromises on issues of
due process and prevents the usual
number of appeals, it is dangerous to al-
low the police to offer “assistance” which
may lead to coercion of the litigants.
Conclusions
The government should appreciate that
the aim of adjudication is not merely
peace, or the maximisation of the ends of

private parties (Fiss 1984: 1073). It is to
give force to constitutional values and
ensure that such values infuse the content
of the true aim of adjudication – justice.
A statute that is created only for people re-
siding in rural areas, with limited proce-
dural guarantees, to adjudicate allegedly
small claims – including those that impli-
cate a litany of social welfare legislation
concerning – Minimum Wages, Civil Rights,
Implementation of the
Maharashtra Universities Act
B Venkatesh Kumar
An evaluation of the
implementation of the
Maharashtra Universities Act,
1994 shows that individuals who
excel in electoral arithmetic,
rather than academics or academic
administrators, occupy important
posts in universities. The state
government has appointed three
committees to suggest reforms in
higher education. Not only is
there a need for a new legislative
enactment, these committees also
face the challenging task of
recommending changes that
will lead to academic freedom
and accountability in the
state’s universities.
B Venkatesh Kumar (venk71@gmail.com) is
with the Tata Institute of Social Sciences,
Mumbai and currently a Hubert Humphrey
Fellow at Penn State University, United States.
Economic & Political Weekly  EPW   october 23, 2010  vol xlv no 43
Abolishing Bonded Labour, Equal Pay and
Protection from Domestic Violence com-
promises the promises of our Constitu-
tion. It makes a mockery of that which is
most sacred to all law – that ­power, re-
sources and the quantum of private gain
will not determine the aims or means of
the process that is adjudication. The Gram
Nyayalayas Act violates this essential
foundation of adjudication.
R
ecently, the Government of Maha-­
rashtra announced the formation
of three committees to suggest
measures for reform of higher education.
While two of these have been given the
task of looking at the existing Maharashtra
Universities (MU) Act, 1994, recommending
new legislative enactments, and bifurcation
of universities, the third committee has
been given a much broader mandate. It has
been asked to suggest ways and means to
improve the standard and quality of higher
education. There are other issues which they
are mandated to look at within a holistic
framework (http://techedu.maharashtra.
gov.in/english/dcmNew/index_UC.php?
departmentCode=2402) of reforms.
This raises several concerns. First, with
three committees there is the risk of
contradictory recommendations. Second,
there is no representation from the social
sciences and the legal field, both essential
for (re)drafting of the Act. Third, the
committees’ recommendations will be
examined by another committee chaired
by the education minister. The political
control over higher education in Mahar-
ashtra is so deeply embedded that reforms
leading to academic freedom and excel-
lence look like a distant possibility.
Interesting and Intriguing
The state government’s decision to over-
haul the higher education system is both
interesting and intriguing. It is interesting
because Maharashtra with its long tradition
commentary
References
Department Related Parliamentary Standing Com-
mittee: Committee on Personnel, Public Griev-
ances, Law and Justice, 22nd Report on the Gram
Nyayalayas Bill, 2007.
Fiss, Owen M (1984): Against Settlement, Yale Law
Journal 93:1073.
Galanter, Marc and Jayanth K Krishnan (2004):
“Bread for the Poor”: Access to Justice and the
Rights of the Needy in India”, Hastings Law Journal
55:789.
Tewari, Sulabh and Tanya Agarwal (2006): Wanna
Make a Deal? The Introduction of Plea Bargaining
in India, Supreme Court Cases (Cri) (Jour) 2:12.
of political elites setting up educational
institutions for “public good”, has decided
to get its house in order by looking at re-
forming the public universities. It is quite
intriguing because the same political class
that governs a large number of educational
institutions in the state (in fact, they
believe that healthy public universities
are a threat to their institutions) are now
looking at reforming these universities!
The current initiative in Maharashtra is
in continuation of the landmark reform
process that was initiated by the state gov-
ernment at the instance of the former
Governor and Chancellor of Universities,
S C Jamir. These reforms, initiated in
2009, were aimed at improving the gov-
ernance of universities in the state, some
of which achieved the desired outcomes
(Kumar 2009).
This article examines the current state
of higher education in Maharashtra and
the implementation of the MU Act of 1994.
It also looks at issues of external and
internal constraints which have led to the
deinstitutionalisation of many universities.
Such deinstitutionalisation in turn has
resulted in a severe crisis of governance.
There is need for a new legislative enact-
ment and a diversified institutional design
for universities – a challenge these three
committees will have to address.
Current Status
An independent study for the Planning
Commission (Pethe et al 2009) for the
midterm review of the Eleventh Plan,
which draws heavily from the Maharash-
tra government’s statistics, has interest-
ing pointers. While the Gross Enrolment
Ratio (GER) for India is about 13.1%,
Maharashtra’s GER is 13% in higher and
technical education. On the other hand,
while the GER for vocational education is
19