GRAM NYAYALAYAS

Why are we floundering eight years after getting a new Act?

                                                                                                                                                                                                                                                                                    *Anumeha

Justice is the foundation of any civilized society. Article 39A of the Indian Constitution mandates justice for all on the basis of equal opportunity. Over the years successive Governments have tried in their own ways to strengthen the judicial system. As a result, procedural laws have been simplified, lokadalats and fast truck courts introduced and alternative dispute resolution mechanisms such as arbitration, conciliation and mediation have been incorporated into the legal system. However, despite these initiatives, a large percentage of population, mostly of the rural and the disadvantaged sections, has been excluded from the ambit of justice delivery.

In order to dispense justice in the rural and the remotest of areas in the country, the Gram Nyayalaya Act was enacted in 2008. The Act was designed to bring speedy, affordable and substantial justice for those citizens who are denied access to justice in the formal system. (The Act has added the lowest tier of courts of subordinate judiciary in addition to the regular civil and criminal courts). One of the objectives was also to reduce pendency in courts and to improve India's dismal judge-to-population ratio. In this write up we will try to make sense of the Act, its principal features and provisions, some of which had also been recommended by the Law Commission (114th Report, 1986), and suggest steps to plug in the leakages /loopholes in the Gram Nyayalaya setup.

It is inexplicable, and even frustrating, that an Indian Law Institute report prepared on the effectiveness of Gram Nyayalayas in Madhya Pradesh and Rajasthan was not made available in the public domain. Common Cause secured a copy of the report through Right to Information (RTI)Act to be able to throw more light on the issue. Some government sources, who do not wish to be identified, also shared alarming information with us on the states' apathy towards making justice accessible to all.

Gram Nyayalayas - the rationale, functioning, jurisdiction and procedures

The Act was enacted "to provide for the establishment of the Gram Nyayalayas at the grass root level for the purpose of providing access to justice to the citizens at their door steps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities...1 Under the Act, around 5000 Gram Nyayalayas were to be added to the existing structure of judiciary to reduce pendency and arrears in subordinate Courts as well as judge to population ratio in our country. It was made operational on October 2, 2009, the birthday of Mahatma Gandhi, the father of the nation. 2

It was envisaged that the Central government would fund the initial costs in terms of non- recurring expenses for setting up these courts with an assistance limited to Rs.18 lakhs per Gram Nyayalaya and the recurring expenditure would be equally shared by the Centre subject to a ceiling of Rs. 3.20 lakhs per court per annum for the first three years.3 The thirteenth Finance Commission had earmarked Rs 5000 crores for 5 years during 2010-15 for the state governments to set up these institutions.

1.  http://doj.gov.in/sites/default/files/gramnyayalayas_0.pdf&embedded=true (Last accessed on April 4, 2016)

2.  Dept-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law And Justice Sixty Seventh Report (Presented To The Rajya Sabha On 6th February, 2014) (Laid On The Table Of Lok Sabha On 6th         February, 2014)

3. Order No.J-12021/5/2009-JR dated Dec 16, 2009, GOI, MoL&J, Dept of Justice

4. Rajya Sabha Department Related Parliamentary Standing Committee On Personnel, Public Grievances, Law And Justice Fifty Eighth Report On Demands For Grants (2013-14) Of The Ministry Of Law And Justice (Presented To The Rajya Sabha On 25th April, 2013) (Laid On The Table Of The Lok Sabha On 26 April, 2013)

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A Gram Nyayalaya is established for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district. The seat of the Gram Nyayalaya is located at the headquarters of the intermediate Panchayat, but the Judicial Officers are supposed to go to the villages, work there and dispose of the cases.

Each Gram Nyayalaya is a court of Judicial Magistrate of the first class and its presiding officer (Nyayadhikari) is appointed by the state government in consultation with the High Court. (It is to be noted that in regular civil / judicial courts, the High Court itself makes appointments).The judges who preside over the Gram Nyayalaya are strictly Judicial Officers. They draw the same salary, deriving the same powers as First Class Magistrates working under High Courts.

Justice Dispensation - A Gram Nyayalaya is a mobile court and exercises the powers of both Criminal and Civil Courts. They are empowered to try criminal cases, civil suits and claims or disputes which are specified in the First Schedule and the Second Schedule to the Act. These are summarized below:

• Offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

• Theft as well as receiving or retaining stolen property, where the value of the property stolen does not exceed rupees twenty thousand.

• Offences related to central acts such as payment of wages, minimum wages, Protection of civil rights, bonded labour, protection of women from domestic violence, etc. Offences under States Acts which are notified by each state government.

• Civil and Property suits such as use of common pasture, water channels, farms, right to draw water from a well or tube well etc.

• The First schedule and Second schedule of the Gram Nyayalaya act can be amended by both the central and state governments.

• Each Gram Nyayalaya exercises the power of a Civil Court with some modification such as special procedure as mentioned in the act.

• The primary focus of the Gram Nyayalaya is to bring about conciliation between the parties. The judgment and order passed by the Gram Nyayalaya is deemed to be a decree and to avoid delay in its execution, they can follow summary procedure for its execution.

• A Gram Nyayalaya is not to be bound by the rules of evidence provided in the Indian Evidence Act, 1872 but is guided by the principles of natural justice and subject to any rule made by the High Court.

Appeals procedures- Appeals lie in the court of District Judge in civil cases not above a specified pecuniary value, and in the Sessions Court for criminal cases where the accused has not pleaded guilty, or has been ordered to pay a fine over one thousand rupees.

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The juridical construction of Gram Nyayalayas

Law Commission's Recommendation versus the Gram Nyayalaya Act

The 114th report of the Law Commission was the originator of the idea of a Gram Nyayalaya. The Law Commission settled on the form of a rural court that would be set up at the Taluka level across the Country. While this court would be headquartered at the seat of each individual Taluka, it was expected to travel to the various villages within a Taluka and would therefore be a mobile court. This forms one of the fundamental ideas on which Gram Nyayalayas are based, that of providing justice at the door step of persons residing in rural areas. This feature of Gram Nyayalayas is contained in Section 9 of the 2009 Act.

One of the other major thrusts of the Law Commission in its report in 1986, was to create a model which could provide a version of participatory justice to persons in rural areas.

An xtension of this desire to achieve a model of participatory justice is also found in the Law Commission's prescription of a consensual, conciliatory process in Gram Nyayalayas, in place of a strictly adversarial system. This was sought to be ensured by the presence of lay-judges and a mobile court, but also rather amorphously by the reduced application of procedural law. The Act of 2009 contains a different version of this desire for consensual dispute resolution, and places an obligation on the Gram Nyayalaya that all civil cases be first attempted to be resolved by the consent of the parties, or through a formal conciliation procedure. However in case neither of these proves fruitful, the Act provides for the trial of cases, albeit with reduced procedural requirements. It should be clear then that the Act does not impose the consensual resolution of disputes on parties; they may seek adversarial adjudication and engage lawyers to appear for them before the Gram Nyayalaya if an amicable resolution does not appear possible.

In terms of jurisdiction, the Law Commission was in favour of granting Gram Nyayalayas a relatively wide jurisdiction, roughly co-extensive with those of the Judicial Magistrate First Class and the Civil Judge (Junior Division) in criminal and civil cases respectively. The Act of 2009 does not adopt this proposal entirely, but instead clearly delineates the subject matter jurisdiction of Gram Nyayalayas in both criminal as well as civil cases in its First and Second Schedules respectively, while allowing the High Court to prescribe pecuniary limits. The tone of the discussion in both the Law Commission's Report, as well as the legislative debate before the enactment of the Act in 2009, reveals the familiar, somewhat patronising desire to trust Gram Nyayalayas with the relatively simple cases typically arising in rural areas. The upshot of all this is that Gram Nyayalayas possess a comparable jurisdiction to the Judicial Magistrate First Class or Civil Judge Junior Division.

The Act of 2009 also circumscribes the number of appeals that may be allowed from decisions in the Gram Nyayalaya. This however does not operate as an absolute bar on appeals of the kind witnessed in Lok Adalats. Instead, the Act restricts the provision of appeal to civil cases above a specified pecuniary value, and criminal cases where the accused has not pleaded guilty, or has been ordered to pay a fine over one thousand rupees. This abridgment of the right to appeal from decisions in Gram Nyayalayas has been a source of concern for some. Appeals from Gram Nyayalayas in criminal cases are to be heard by Courts of Session, while those in civil cases are to be heard by District Judges. Once again, this puts them at the same level as Judicial Magistrates of the First Class, and Civil Judges of the Junior Division.

Lastly, while the Law Commission prescribed the creation of a distinct cadre of Nyayadhikaris in each state, the Act of 2009 does not do so. Instead, the Act simply prescribes that only persons eligible to be appointed as Judicial Magistrates of the First Class shall be qualified to be appointed as Nyayadhikaris, leaving the question whether these persons shall be members of the regular judiciary or may be drawn from outside, unanswered.

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Have the Gram Nyayalayas been effective?

The Department of Justice, Ministry of Law & Justice, Government of India had commissioned a study on the effectiveness of the Gram Nyayalayas in the States of Rajasthan and Madhya Pradesh (MP) to the Indian Law Institute (ILI), New Delhi. Besides, insufficient infrastructure and manpower, the ILI Report highlighted the issue of concurrent jurisdiction of regular courts and reluctance on the part of state functionaries to invoke the jurisdiction of Gram Nyayalayas.

Common Cause has accessed this report which reveal the glaring inadequacies in the functioning of the Act in these trophy states. A brief of the Report is presented below:

The main objectives of Gram Nyayalayas included justice at the doorstep of rural populace, speedy and effective disposal of cases, reduction in pendencies in regular courts, use of non-adversarial techniques such as conciliation and plea-bargaining for resolution of disputes, etc. From the viewpoint of these objectives, Gram Nyayalayas in these two states have not been very successful and the reasons for the same are plentiful.

Gram Nyayalayas have been established on part-time basis (weekly once or twice) and are not in addition to the existing courts. In the absence of a separate cadre of Gram Nyayadhikari, the Gram Nyayalayas are presided over by First Class Judicial Magistrates or Civil Judges (grade I or grade II) or in a few cases Chief Judicial Magistrates who are already over burdened with their regular judicial work. Further, the spirit of the legislation requires that as far as possible Gram Nyayalayas should be established where it would be of maximum utility to the villagers. But in practice some of the Gram Nyayalayas are established in cities/towns along with other regular courts having parallel jurisdiction. For example, in Indore the Gram Nyayalaya functions within the regular court premises.

It has also been pointed out that the infrastructure and security are grossly inadequate in MP. In Rajasthan, however the situation is better.

Besides, many of the stakeholders including the litigants, lawyers, police officers and others are not even aware about the existence of Gram Nyayalayas in the district court premises and no conferences or seminars have been organized for creating awareness about this institution. Further, there is ambiguity and confusion regarding the specific jurisdiction of Gram Nyayalayas, due to the existence of alternative forums such as labour courts, family courts, etc.

As stated above, one of the objectives of the Act was to reduce pendency and burden on lower courts in the district but the study revealed that even this has not been fulfilled. The number of cases disposed by Gram Nyayalayas is negligible and that they do not make any substantial difference in the overall pendency in the subordinate courts.

Other reasons for the institution falling short of expectations have been the lack of cooperation from lawyers and Public Prosecutors. The reasons cited range from lack of economic viability or incentives/allowance to security issues, unsafe location of a Gram Nyayalaya (sometimes being close to a forest, where crime rates are high), etc. 

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Some suggestions have been offered for optimizing the efficiency of Gram Nyayalayas of which the significant ones are:

• Establishment of permanent Gram Nyayalayas: Gram Nyayalayas may be established in every Panchayats at intermediate level or group of contiguous Panchayats at intermediate level depending upon the number of disputes which normally arise from that area. While determining the location of the Gram Nyayalayas the location of courts having parallel jurisdiction may also be considered.

• Infrastructure and Security: Separate building for the functioning of the Gram Nyayalaya as well as for the accommodation of the Gram Nyayadhikaris and other staff need to be constructed. Provision also has to be made for providing adequate security.

• Creation of a regular cadre of Gram Nyayadhikari: Officers recruited to this service ought to have a degree in social work apart from a law degree. However, some of the Gram Nyayadhikaris opined that creation of such a separate cadre might not be advisable due to the absence of chances of promotion. Instead, this could be made a compulsory service for a certain period for a newly recruited judicial officer to the regular cadre of first class judicial magistrates or civil judges.

• Training of Gram Nyayadhikari: This is imperative keeping in mind the objectives of Gram Nyayalayas. Apart from the legal and procedural requirements of Gram Nyayalayas, training may also include the local language of the community amongst whom they are posted.

• The Jurisdiction of the Gram Nyayalayas may be redefined in order to remove the ambiguities regarding the jurisdiction of Gram Nyayalayas, and the Act amended.

• Creation of awareness among various stakeholders: Suitable steps may be taken for creating awareness among various stakeholders including the revenue and police officers.

The Department-Related Parliamentary Standing Committee6, in its report to Parliament, expressed dismay that the Gram Nyayalayas which were supposed to usher in a revolution at the lowest level of the judicial system were being held back because of fund sharing problem between the Central and the State Governments. It minced no words when it noted that very few States had shown eagerness to establish the Gram Nyayalayas and that there was not a single Gram Nyayalayas in any of the North- Eastern States.

The Committee acknowledged that there were shortcomings in the functioning of these bodies of which the slow pace of utilization of funds, in the absence of proposals by the States was purported to be the primary cause. Besides, inadequate infrastructure, non-availability of judicial officers to function as Gram Nyayadhikaries and problem of concurrent jurisdiction of regular courts were also impeding the speedy operationalization of the scheme.

Current Status

It is unfortunate that even after eight years of the Act's enactment and the Standing Congmmittee's stingi observations, the implementation left to the States, has been dismal across the country. The then Union Minister for Law and Justice M. VeerappaMoily had assured in Oct, 2009 that the Centre would set up 5,000 village courts in the country in the next four-and-a-half years.7

6  Comments of the Department-Related Parliamentary Standing Committee, Rajya Sabha On Personnel, Public Grievances, Law And Justice -Sixty Seventh Report (Presented to the Rajya Sabha on 6th February, 2014)(Laid on the Table of Lok Sabha on 6th February, 2014) -Infrastructure Development and Strengthening of Subordinate Courts

7.http://www.thehindu.com/news/cities/Mangalore/5000-village-courts-to-be-set-up/article33920.ece (October 14, 2009, The Hindu, last accessed on April 4, 2016)

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However, as per information accessed under RTI by Common Cause in May 2015, only the following State Governments have notified and operationalized Gram Nyayalayas.

Presented below is an overview of the status of implementation of the Act in the states and Union Territories. This information was provided to the writer by a government official who did not wish to be quoted.

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While Bihar, Gujarat, Lakshadweep, Daman & Diu, Puducherry and Dadra & Nagar Haveli have not even bothered to send in their comments on the proposal to set up Gram Nyayalayas, the states of Himachal Pradesh, Chhattisgarh, Tamil Nadu, Uttarakhand, Delhi and Chandigarh have decided not to establish Gram Nyayalayas, the latter two claiming urbanization for this decision.

The tribal areas in Mizoram and Nagaland have been exempted and for non-tribal areas, these North Eastern states have expressed their willingness to set up Gram Nyayalayas subject to elimination of certain legal impediments, not specified.

The way forward

The Preamble to the Gram Nyayalaya Act envisages access to justice to the citizens at their doorstep with the assurance that opportunities for securing justice are not denied to any citizen by reason of any disability whatsoever. Hence, the success of these institutions should not only be measured by the number of courts established in different states, but also in terms of reaching out to deprived sections of the society and its role in the overall reduction in the pendency of cases. However, as described in the earlier section, data analysed for Gram Nyayalayas in MP and Rajasthan indicate a not so positive outcome in respect of the latter.

When we begin to analyse the reasons for this failure, we see that there are a number of fault-lines in the functioning of these institutions in these two states. These range from procedural aspects such as ambiguity about its jurisdiction, absence of alternative methods of dispute resolution like conciliation or plea, etc, to substantive issues like part-time nature of Gram Nyayalayas, absence of a separate cadre of Gram Nyayadhikari, inadequate infrastructure and security, lack of seriousness and lukewarm response of the Public Prosecutors and lawyers, reluctance of police officials and other State functionaries to invoke the jurisdiction of Gram Nyayalayas, etc.

Also, the state wise responses detailed above, reveal that many of the states have been procrastinating, citing reasons such as absence of sufficient work for Gram Nyayalayas and some even expressing their apprehensions about increased work load in the District and Session Courts. Most of the states have expressed their dissatisfaction at the inadequate amount of funds and land allocation for the establishment of Gram Nyayalayas. Other issues include the non-availability of notaries and stamp vendors and problem of concurrent jurisdiction of regular courts. Further, majority of States have now set up regular courts at Taluk level, thus reducing the demand for Gram Nyayalayas .

Interestingly, a recurring question during various discussions prior to the passing of the Act was that whether speedy disposal meant speedy and effective justice for the poorer litigant. An emphasis on speedy disposal alone raised concerns about the objective of these institutions- whether to manage the arrears of the cases or to enable better access to the litigants?

However, despite these shortcomings, the institution of Gram Nyayalayas has been a positive step. Above everything else they need concrete, well planned and continuous efforts to make them work. The policy makers need to review, reflect and act upon the suggestions offered by stakeholders and firmly resolve to fulfil the mandate of Sec 39 A. This may need an amendment to the Act in order to iron out ambiguities on the basis of experiences of the past 8 years. Failing this, the dispensation of inexpensive and 'effective' justice to each person in the farthest and the remotest rural corners will remain a distant dream.

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*Anumeha is a Senior Research Analyst with Common Cause