Report No. 154
1. In India many of the existing state legislation on panchayat raj provide for some form of adjudicatory bodies by whatever name they may be described. These fora for resolution of disputes with people's participation in the administration of justice is the constitutional goal mandated by Article 39A of the Constitution.
Article 39A directs the State to secure that the operation of the legal system promotes justice, on the 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 on the ground of economic or other disabilities. The Constitution now mandates us to remove impediments to access to justice in a systematic manner. Articles 40 and 243 have to be interpreted afresh in the light of the mandate in Article 39A.
2. In the past, in the organisation of nyaya panchayats, the predominant consideration had been to reduce the burden on the State Court system and not so much as to prevent denial of justice because of economic and other disabilities. The "other disabilities" referred to in Article 39A as distinct from the economic disabilities are those which arise from the profiles of the Indian legal system because of absence of suitable local grassroots organs for handling disputes and emphasis on professionalised justice.
Professionalised justice with lawyers dominating the process of the justice-delivery system cannot be extended to the bulk of the people in the rural areas because most of the lawyers are concentrated in urban areas. Moreover, in view of the voluntary nature of the profession, they cannot be dispersed adequately and equitably to serve the needs of the masses.
3. Merely procedural alterations are envisaged in Article 39A to ensure a new legal system and procedure which is operationally geared to social justice and elimination of all disabilities of the masses in getting real, remedial justice. Self-government envisaged by the Constitution must include judicial powers too and that is the rationale for nyaya panchayats which implies judicial decentralisation at the peoples level.1 Effective access to justice is the most basic requirement and the most basic human right of a system which purports to guarantee legal, rights.2
1. Justice V.R. Krishna Iyer Our Courts on Trial, (1987).
2. Cappelletti, Mauro and Garth, Bryant (Ed.) Access to Justice, 4 volumes, (1978-79).
4. These judicial institutions represent the secular, egalitarian, modernistic legal ideology for assisting the desired social change. The Law Commission in its Fourteenth Report stresses the "educative value of nyaya panchayats"; just as the village panchayats would educate the villager in the art of self-government, "so would nyaya panchayats" train him in the art of doing justice between fellow citizens and instill in him a growing sense of fairness and responsibility1. In this respect, nyaya panchayats constitute an aspect of overall development.2
1. The Law Commission of India, Fourteenth report on Reform of Judicial Administration (1958); see also Government of India, Report of the study Team on Nyaya Panchayats (1962).
2. Upendra Baxi Access Development and Distributive Justice: Access Problems of the "Rural" Population, 18 Journal of the Indian Law Institute 375 (1976).
5.1. The working of nyaya panchayats has been examined in detail by the Law Commission in their 114th Report on Gram Nyayalayas. The Law Commission has recommended setting up of Gram Nyayalayas with the following broad features.1
1. Law Commission of India, One Hundred and Fourteen Report on Gram Nyayalayas, (1980).
5.2. A munsif or civil judge should preside over the nyaya panchayats. They would be subject to the jurisdiction of High Courts.
5.3. To provide effective people's participation in the administration of justice, the district magistrate and the district and sessions judge for each district should draw up a panel-of lay persons from respectable residents in the villages having educational attainments, preferably upto a university degree or at least a higher secondary school. In order to ensure that marginal farmers, farm workers etc. get their due share in the panel, if need arises, educational qualifications may be relaxed in their case. Depending upon the size of each taluka, the list of panelists may vary from 10 to 20. The list should be approved by the High Court.
5.4. Whenever a dispute is brought to the panchayat judge having his headquarters at the taluka level, he would proceed to select two from the panel of lay persons, keeping in view the fact that they must be as far as possible, from the geographical location of the dispute. The panchayat judge and the two members of the panel will constitute a nyaya panchayat for the dispute. Such a composition would ensure legal expertise and peoples' participation and would avoid caste, communal and political contamination.
5.5. The Commission was of the view that 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.
6. We are of the view that the recommendation of the Law Commission in its 114th Report on the presiding officers of Gram Nyayalaya may not be feasible because serving Munsifs/Civil Judges will not be able to shoulder the additional burden of presiding over Gram Nyayalayas in the rural areas. As it is, there is docket explosion in the civil courts and the civil justice delivering system is adversely affected by the phenomenon of huge backlog of cases leading to long delays in disposals.
Restricting to serving judicial officers only prevents the consideration of retired judicial officers and other personnel who have served in the government in various capacities. We are also not in favour of engaging lawyers by the parties to appear before the Nyaya, Panchayats for it would introduce technical legal formalities into the system leading to delays in the disposal of cases. Indeed it would frustrate the very purpose for which the Gram Nyayalayas are being introduced.
7. We are of the view that the State have to enact legislation on Nyaya Panchayats to suit their local needs and conditions. The Andhra Pradesh Mandala Nyaya Panchayats Bill, 1995 may be adopted as a model on the composition, powers and jurisdiction of the Nyaya Panchayats. (See Annexure V).