Report No. 114
5.20. The problem of unanimity.-
Gram Nyayalaya is to consist of a Presiding Judge belonging to Panchayati Raj Cadre Judges and two lay Judges. In view of this composition, a serious debate ensued as to whether the two lay Judges by a majority decision can dispose of the dispute leaving the Presiding Judge in minority with a dissenting opinion. One view was that the two lay Judges must be assigned the role of assessors as the term was understood in the Code of Criminal Procedure, 1898, before that institution was abolished. To recall their role, the opinion of the assessors on questions of fact was not binding on the trial judge, and he could ignore the same with impunity. In the case of a Jury, unanimous or majority decision on questions of facts was binding on the trial Judge. Jury and assessors were bound to take the law from the Judge.
If the Judge considers the unanimous or majority decision of the Jury unreasonable or perverse, it was incumbent upon him to give reasons and refer the case to the High Court for an appropriate order. It was not open to the Judge to overrule or ignore the majority or unanimous decision of the Jury. The institution of assessors was a butt of ridicule. It served no purpose except that it had a facade of participatory justice and it was a shadow without substance and substance without significance. Keeping this historical background in view, would it be wise to repeat the experience of assessors? The answer is in the negative. The situation would not be improved by reintroducing the Jury system. In order to make participatory justice effective and meaningful, a beginning has to be somewhere made.
The Gram Nyayalaya is a step in that direction. In view of the fact that disputes coming before Gram Nyayalaya will be simple, uncomplicated and not involving complex questions of law, it is better to generate confidence of the society in lay participation in the administration of justice. Only one safeguard need be provided. In the matter of law, the Presiding Judge will give necessary directions to the two lay Judges. But in the matter of adjudication and decision of disputes, in the absence of a unanimous decision, a majority decision even if composed of two lay Judges will be the decision of the Nyayalaya. Any other view would again render the position of lay Judges ineffective and the attempt at introducing participatory justice will receive a set back.
Viewed from this angle, the other extreme view that the two lay Judges alone should be entitled to adjudicate upon the dispute and the Presiding Judge will give them guidance must be rejected on the ground that it would run counter to the whole concept of Gram Nyayalaya. As soon as the hearing is over, the three Judges should deliberate and try to arrive at a unanimous decision. The Presiding Judge should give guidance in the matter of law and decision making process. This novel experiment ensures interaction between a legally trained mind and people of sound commonsense duly informed in ways of the world and conversant with local conditions, traditions, beliefs and approach to local disputes.
Nothing should be done to impair the relative equality among the three Judges composing the court. The lay Judges should not be belittled in any way. People's faith must be generated so as to induce their acceptability. 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 that may arise in the course of proceeding and may have to be dealt with the for resolving the disputes, in the matter of decision, the majority view in the absence of an unanimous decision will be the decision of the court.