Human welfare demands a minimum efficient order to ensure that basic needs such as food production, shelter and child rearing be satisfied, not in a state of constant chaos and conflict, but in a peaceful, orderly basis with a reasonable level of day-to-day security. Administration of justice is the primary responsibility of the State. This includes a sacrosanct duty of the State to ensure equal access to legal services by all the citizens.
The problem of inequality in accessing justice mechanism at minimum cost has been a widespread problem across almost all democracies globally. India is no exception to this perennial concern. Since independence, India has consistently taken serious efforts in fulfilling its Constitutional mandate of making legal services available to all its citizens by developing institutions like legal aid. Latest legislative action of the Indian parliament in this regard has been the enactment of the Gram Nyayalayas Act, 2008.
In the recent case of Anita Kushwaha vs Pushap Sudan (2016) 8 SCC 509, the Supreme Court examined whether access to justice is indeed a fundamental right. The court also examined the jurisprudential aspect of the Right of Access to Justice and its correlation with the right to life. Finally, the Apex Court held that- access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution.
With Art. 40 (Directive Principles of State Policy) and the 73rd amendment of the Constitution, under Art. 243 of the Constitution, Gram Panchayats got the status of ‘local self-government’. Hence, the constitutional recognition of Gram Sabha, Panchayats at all three tiers and the mandate brought huge responsibility as well as resources to the Panchayats. But, for existing as a government, any entity needs to have executive, legislative and judicial authority. Our panchayats had legislative and executive authorities but were kept a bit aloof from the judiciary.
Today, the judicial status of this great nation is scaring for even the judiciary. More than 3 crore cases are pending across the nation. The supreme court itself has 57,346 cases pending on its part. Recently, there were crucial incidents taking place regarding the digestion of collegium system, the less sensitivity of legislature towards the deployment of human force in the judicial service and we also witnessed the honourable PM attending informal meets of the judges organized in the supreme court. Hence, we have to say that the government has taken the requirements of judiciary seriously and we hope positive developments.
After the Constitutional Amendment 73rd Act came into existence and got enforced across the nation, the modernization of the Panchayat System started. It is important to note that the journey of the decentralized way of governing localities started with Lord Ripon’s Resolution (1882) and continues till date with the most popular and comprehensive study report by the BR Mehta committee (1957-58), Ashok Mehta Committee (1978-80) and Sarkaria Commission (1988). The significant rise of Panchayati Raj System in free India started in 1959-61 but in the same decade India went for war against China (1962) and it also embarked on the most sought journey of self-sufficiency in grain production through first Green Revolution. These major incidents brought a major shift in the paradigm and the reformation and modernization of the Panchayati Raj System lost its prioritized status.
While visualizing the whole Panchayati Raj System, we need to keep in mind that Central Government may provide policy mandates, budgets, official orders, directives, and functionaries but the implementation rules have to be formulated by the States upholding their contextual priorities, needs, and scale.
After going through the significant milestones of the journey of Panchayati Raj System Development in India, one thing that we may derive is that it really was focused on economic development, infrastructure, power decentralization, and inclusion. In most of the landmark reports, the judicial system has not been kept on a priority basis. It was assumed from the tradition that the disputes will be resolved once the Gram Sabha gets empowered and the Village Head assumes it full fledge authority. Unfortunately, the letters of Part IX of the Indian Constitution couldn’t get materialized on the ground at the desired scale.
After the uncontrolled increment of the burden on the block and district level judiciaries and to materialize the vision of decentralization of governance, it became important to bring the judicial system at the doorstep of the villages.
Hence, after almost 12 rounds of studies conducted by the Law Commission of India itself, the nation got Gram Nyayalayas Act in 2008 which was enforced on 7th Jan 2009. The purpose of the Act is to “provide access to justice to the citizens at their doorstep” and eradicate any case of denial of justice. The implementation of the act has to be done by states in consultation with respective High Courts. It is imperative on the part of legislators that they have demonstrated an intact vision in the provisions of this Act. It enables a Gram Panchayat to hold courts (Gram Nyayalay) in any conducive place in the village, or in case of out of the village – a popular means of communication has to be used. The official who will be conducting the Gram Nyayalay (GN) is called Nyayadhikari who is supposed to be of the rank of Judicial Magistrate of the first class. The GN is mandated to exercise both Civil and Criminal jurisdiction and the extent of cases is nothing less than what contained in Code of Civil Procedure 1908 and that in Code of Criminal Procedure 1973. The cases may engage advocates as well in both ways: 1.With the personal bearing of the complainant, 2. Legal assistance provided by State like NALSA. The GN follows Indian Evidence Act 1872, has mandatory police assistance to exercise its lawful authority and spirited to assist, persuade and conciliate the parties in Civil disputes to arrive at a settlement. The decree of a Gram Nyayalaya is equivalent to that of a Civil Court. Yet, the complainant may go to higher judiciary institution like sub-divisional court or district/court in session.
Now, when the letters prescribed in the legislation and the contemporary scene is analyzed, there is a trench. The assumption of the proactive role of Gram Sabhas in fixing the issues of the Panchayat is a failure at scale. The migration of the whole working class out of villages has prevailed a situation where the political affairs of the Panchayat are managed by powerful individuals and exploitative elites. In the journey of strengthening the roots of the society, in real terms, we have attained the path of exploitation rather than that of exploration. This collapse at the level of the foundation is setting up chaos contained with injustice, inequality, insecurity, unemployment, unhealthiness, climate change, gender biases, and poverty.
An NCRB survey says that for a long time, land disputes have been one of the major causes of murders and killings.
It is obvious that the indigestible delay in cracking a case brings frustration and people use muscle power to impose their personal decisions on others. Out of more than 3 crore cases pending, if we remove 52 thousand (which are in the Supreme Court), each district has an average of almost 55 thousand cases pending in its jurisdiction. The number is enough to magnify the level of expense citizens invest to find justice, the amount of tension the society lives with and the magnitude of the threat it creates for the law and order. It becomes really difficult for the system to find a way for economic development and social justice with such deep maladjustment.
The Indian Panchayati Raj system which is the mainstream institution of rural local governance at a village, intermediate and district level, there is no debate in upholding the target of the Act of setting up more than 5000 Gram Nyayalayas. Around 194 such courts have been set up as on March 2015. Let’s have a look at the numbers:
Madhya Pradesh 89, Rajasthan 45, Karnataka 2, Orissa 16, Maharashtra 18, Jharkhand 6, Goa 2, Punjab 2, Haryana 2, Uttar Pradesh 12. In Bihar, there is a different mechanism in which Gram Sarpanch is elected entity who heads the Gram Kachehri (Court). Gram Kachehri includes Panchs who get selected for each 500 population.
A case for better understanding:
Suppose ‘A’ bought a piece of land ‘Z’ in a village of Bihar from ‘D’. ‘B’ sold a part of that piece of land to ‘C’. ‘A’, ‘B’ & ‘D’ belong to the same family tree. Hence, there is a conflict between ‘A’ & ‘C’ and the subsequent conflict between ‘A’ & ‘B’. The conflict gets raised when ‘C’ starts capturing the part of the piece of land ‘Z’. The complainant ‘A’ goes to the Gram Panchayat to get the case resolved. A meeting called ‘Panchayati’ is organized which includes people of repute in the locality, Sarpanch of the Gram Kachahri, people of both sides and issue is discussed. Discussion happens, the heavyweights use their power, the politicians act as peacemakers or are biased to the powerful or are biased to the suppressed and in the above the case, judgment gets announced in the favor of ‘A’ and ‘C’ is advised to vacate its capture.
Now there is hardly any engagement of any professional from the judiciary. Hence, ‘C’ appeals to the Sub-divisional magistrate and a Civil Suit gets filed afresh. It takes time, which may vary from 2 years to 2 decades. In the meanwhile, the encroachment from both the parties keep happening on the land which seeds tension and attracts activities which may be classified as criminal offences. Now, a criminal suit gets filed by any of the party making ‘threat to life and property’ the base. Both the parties must now follow the cumbersome judicial procedure in both the cases, bear their travel costs, compromise their developmental activities, and continue the above for decades. The procedures are handled by officials where there is ample scope of duplicity, evidence tampering, false witness statements, money influence, political pressure, social activism and life of the parties. How will the development take place?
States that have set up Gram Nyayalays, are more or less the same. They are operating without a decisive professional judicial public servant. In MP, the position which looks after the judicial matters at Gram Panchayat level is Nyayalay Sahayak and the first judicial magistrate comes at the block level. This results in the transfer of most of the cases to a higher level. And it takes ages to get justice!
Lack of human resource in the judiciary is an obvious reason for a situation like this. But, at the same time, we must not ignore the fact that the Government is the sole agent to make ways. Addressing the issue of implementation, Non-Government Organisations have taken up immense steps in the execution and policy-making in the system but Judiciary hardly provides any scope to the same. Judicial activism is the way feasible, viable and aptly desirable. The government has to take care of this issue creating multi-faceted challenges in upholding rule of law. The Indian aspiration of eradicating poverty, being the largest economy, superpower, and yet the largest democracy of the world is not happening till it ensures justice for all citizens.