Report No. 14
21. Courts more accessible.-
The advantage of bringing justice to the door of the villager has been repeatedly stressed. It is obvious that apart from other difficulties the vast financial implications involved would make it impossible to provide regular civil and criminal courts functioning with legally trained personnel for all the villages to deal with the petty civil and criminal cases arising there. The establishment of regular courts involves provision of court houses and the various attendant paraphernalia which makes the establishment of such courts in each village or even for groups of villages unthinkable. The panchayat courts alone can solve the problem of bringing justice nearer to the villager.
22. Educative value.-
Not of the least importance is the educative influence of the panchayat courts on the villager. The administrative panchayats would gradually train him in the art of reconciling various interests which are divided into political and communal factions. It would enable him to look after the affairs of his village, so would the nyaya panchayats where he would be doing justice between his fellow citizens in the village instil in him a growing sense of fairness and responsibility.
23. Opposition to panchayat courts.-
One would have thought that the considerations mentioned above pointed overwhelmingly in favour, not only of the continuance of the jurisdiction at present conferred on these courts but also of the expansion of such jurisdiction and making it exclusive. But much of the evidence given before us, either in the written memoranda submitted to us or by the witnesses who appeared before us, has been very critical of the working of the panchayat courts and many have advocated their abolition.
Comparison with regular courts misleading.- Most of the witnesses who appeared before us were naturally lawyers or persons concerned with the administration of the law. By reason of their legal or judicial training they were apt to test the working of these courts by comparing them with tribunals manned by trained judicial officers assisted by trained lawyers and governed by regular procedures. Such a comparison was bound to tell heavily against the panchayat courts.
24. Existence of factions.-
Apart, however, from this point of view, it was frequently stated that as the villages were generally divided into political and communal factions, it was impossible to obtain impartial decisions from the Panchas constituting these courts who would belong to one faction or the other. Indeed, it was stated that the constitution and functioning of these courts had led to an increase of feuds and factions in the villages. As against the loud voice of opposition to these tribunals raised by many witnesses, we had a certain body of evidence given by officials supervising the working of these tribunals who, while admitting that the Panchas were new to their duties and that they required training, bore testimony to the usefulness and good work done by these courts. These conflicting views have made our task more difficult.
West Bengal Judicial Reform Committee's Report.- Perhaps the observations made by the Judicial Reforms Committee for the State of West Bengal in their report published in 1951 comprehensively express the reasons given by those who oppose the continuance of these tribunals. The Committee observes as follows:1
1. Report, p. 36.
"The countryside is now torn with factions-, communal, political and personal and it has become well-nigh impossible to ensure an independent and impersonal tribunal selected from inhabitants of the rural areas. Members of these Benches or courts invariably belong to the faction commanding a majority in the district and the courts cannot by reason thereof inspire any confidence in those who belong to the minority faction or factions"
The Committee proceeds to note that the members of these panchayats have no judicial training, that they are swayed by likes and dislikes, that they are amenable to influence and pressure and corruption and that no amount of supervision can give to these courts that impartiality and independence of judgment which is vital to the administration of justice. They concluded that "it is admitted on all hands that these Union Benches and Courts have not been a success and we are unanimously of opinion that no case whatsoever has been made out for an extension of their jurisdiction. On the contrary we feel strongly that these courts have wholly failed to serve the purpose for which they were intended and that being so we think they should be abolished."2
2. Report, p. 35-36.
25. Criticisms exaggerated.-
It will be remembered that the existence of factions and divisions in the villages was also urged before the Civil Justice Committee as a reason for the unsatisfactory functioning of these courts. It has been stated before us that these factions and divisions have increased by reason of the introduction of adult franchise all over the country and the appearance of political parties in the villages. It may be observed that very little, if any, of the evidence given before us by lawyers and those concerned with the administration of justice was based on personal experience.
Such information as they had was derived from the few cases of revisions or appeals from these panchayat courts with which they had occasion to deal. A picture derived from a knowledge of these cases would necessarily be adverse to these tribunals, as the cases coming up in revision or appeal would be gross cases in which these tribunals, through ignorance or partiality, had been guilty of perpetrating a miscarriage of justice. Apart from this, one cannot expect from these tribunals by the very nature of their constitution and the conditions in which they work, the efficiency, the detachment and the impartiality of regular courts of justice.
We feel that the views expressed by some of the witnesses against the manner in which these tribunals have functioned are exaggerated and should be weighed in the background of their training and experience as practising lawyers and judges. As in all corporate life, there would exist in the village factions, divisions and parties. Notwithstanding these, however, the villagers have been accustomed to work in harmony in matters concerning themselves and it appears to us that there is no reason why, with proper safeguards, these courts should not function with a fair amount of success and either conciliate or decide the petty disputes arising in the villages.
26. Grouping of villages.-
Several of the Acts provide for the constitution of village courts which would cover a group of villages situated not very far from one another. Such a provision should result in eliminating or diminishing the effect of factions and divisions on these tribunals. It may even be made a rule that wherever it is possible a dispute arising in one village should be dealt with by Panchas belonging to another village. This course will, of course, result in depriving the tribunal of the advantage of a knowledge not only of the conditions in a particular village but perhaps also of facts relating to the particular dispute which these tribunals would otherwise have. Such a provision need, therefore, be made only where the division of villages into parties and factions makes it necessary that such a course should be adopted.
27. Election to panchayat courts.-
It appears that with the exception of the State of Kerala all the States have adopted election as the mode for appointing the personnel of the panchayats. A great deal of criticism has been directed against this method of selection of the panchas. It has been said that elections inevitably bring factions into existence and that a pancha chosen by election is bound to support the body of electors who put him in office. It is true that the method of electing the judiciary has many evils and that these evils are being increasingly recognised in countries where the system of electing Judges prevails.
But it must not be forgotten that in the case of these courts, we are not dealing with judicial tribunals in the strict sense of the term. We are dealing with tribunals who have to inspire the confidence of the villagers and such confidence can be obtained only by persons chosen by the villagers themselves. Perhaps it would not be incorrect to say that the very basis of the constitution of a panchayat is a choice by the people, whether it be by a tacit consent unanimously given or by an election regularly conducted.
It may be mentioned that most of the Acts constituting the panchayats provide for the election of the village panchayat as a whole and the persons so elected choose out of their number certain persons to be members of the nyaya panchayat, one of whom is selected to be the Sarpanch or the President of the nyaya panchayat. It appears unlikely that members of the nyaya panchayat so elected would reflect any particular division or faction in the village.
Further, it has been pointed out with a certain amount of justification that the very fact that cases are determined by the nyaya panchayats in the presence of numerous persons resident in the locality some of whom would be well aware of the true facts in regard to the case under enquiry is bound to act as a deterrent against partiality or prejudice having a play in the decision. The circumstance that the enquiry is being conducted in the presence of people who have knowledge of the true events should undoubtedly tend to ensure an attitude of fair play and propriety in the attitude of Panchas dealing with the matter.
28. Nomination of panchas.-
A view was expressed by some of the witnesses appearing before us that the element of election in the constitution of the judicial panchayats should be replaced by one of nomination or appointment on the recommendation of the District Judge aided by some other officials. Having given our best consideration to this view we are unable to accept it. It is essential that only persons who command the complete confidence of the villagers should be chosen to administer justice at the village level.
However impartial he may be, a choice of the personnel of the nyaya panchayat by a particular officer, who cannot possibly have a first-hand knowledge of the local conditions and who will have to depend upon information supplied by subordinates in making the choice can never have this essential advantage. The freely expressed will of the villagers would, in substance, be replaced by the untrustworthy recommendations of subordinate officials. Panchas, so appointed would tend to act in a manner which will command the approval of the appointing authority rather than discharge their functions in the true spirit of service to the village community.
The question of appointment vis-a-vis election of Panchas was considered by the West Bengal Committee who expressed themselves definitely against appointment as a method of selection. They stated that it appeared to them "impossible to devise suitable machinery for appointing wholly impartial and independent persons to sit in these courts, though doubtless such persons do exist in the rural areas. Appointments to such courts must be made on the recommendation of some persons or authorities. Persons or bodies living in a particular locality are bound to be influenced in favour of their own factions, friends or supporters and such recommendations could not be safely relief on and their recommendations would in many cases be utterly valueless."1
1. Report, p. 36.
29. Nomination from elected Panchas.-
As will be noticed from the Table relating to the constitution of the panchayats, some States have adopted a method of selection out of the members of the elected panchayat. The selection of the required number of nyaya panchas is made by a prescribed authority. This method prevails in Uttar Pradesh, Madhya Pradesh and Hyderabad. In Assam, Bombay and West Bengal the elected members of the panchayat themselves elect out of their number the nyaya panchas required to constitute the tribunal.
It is only in the State of Kerala (erstwhile Travancore-Cochin area) that the appointment of nyaya panchas is made by the Government on the recommendation of the district officials. This system of appointment seems to have worked satisfactorily in that area, probably because of the smallness of the area and the consequent ease with which the higher officials are in a position to choose persons respected in the villages as the panchas.
30. Qualifications to be prescribed.-
Perhaps the method of selection by a proper official from among those elected as members of the panchayat may afford a solution to this question. Such a method would have the advantage of securing persons chosen by the people from amongst whom persons regarded as more competent than the others may be selected to discharge the functions of nyaya panchas. The selection could be made by a suitable authority on the basis of the possession of certain qualifications such as literacy, reputation for impartiality and the like.