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of behaviour and thinking. They are not necessarily lled with self-doubt and angst and waiting to come out, but are generally comfortable in their places: be it a laboratory, an ivory tower, or the pedestal on which they have been placed. There are frequently conversations within science (and society) regarding science itself, the nature of GM and the role of technology. Such conversations, while insufcient can be encouraged and supported by good media. But technical reports such as the recent one from the academies along with the polarisation fanned by the media only quell debate. And that is an injustice to both science and society.

Notes
1 Bacillus thuringiensis (or Bt) is a bacteria used by farmers as an alternative to pesticides. The gene for the Cry toxins are extracted and inserted into plants in the case of Bt transgene containing plants. A transgene is a gene or genetic material that is transferred from one organism to another using various techniques. More specically, it is often used to describe the segment of DNA that is transferred and can code for a particular RNA or protein. This foreign insert may alter the expression of a gene or trait in the organism. A report by Andow A David, Bt Brinjal: The Scope and Adequacy of the GEAC Environmental Risk Assessment, is based on the analysis of the expert committee and various supporting materials submitted to seek approval for commercialisation of Bt-brinjal. The main thesis of the report is that the GEAC set too narrow a scope for environmental risk assessment of hybrid brinjal. Plenty of articles have been written on epigenetics. For special issues on the subject, see

Nature, Vol 447, Issue 714, 24 May 2007 and Science, 293, Issue 5532, 10 August 2001.

References
Gurien-Sherman, Doug (2009): Failure to Yield, Report by the Union of Concerned Scientists, Cambridge, MA. International Assessment of Agricultural Science and Technology for Development (2009): Agriculture at a Crossroads: The Global Report (Island Press). Kumar, Ananda (2009): Br-Brinjal: A Pioneering Push, Biotech News, Department of Biotechnology, December. Krimsky, Sheldon (2004): Science in the Private Interest: Has the Lure of Prots Corrupted Biomedical Research? Rowman & Littleeld Publishers, Inc. Pearson, Helen (2006): What Is a Gene? Nature, Vol 44, 399-401. Sood, A K, M Vijayan, P S Koel, M Rai, K K Talwar and A Datta (2010): Inter-academy Report on GM Crop, September, unpublished, downloadable from http://bit.ly/cQbyCI.

Accessing Injustice: The Gram Nyayalayas Act, 2008

Menaka Guruswamy, Aditya Singh

The Gram Nyayalayas Act, 2008 moves Indian citizens with small claims, who live in rural areas, out of the adversarial system with its procedural guarantees. As a statute with limited procedural guarantees to adjudicate allegedly small claims, including those that implicate a plethora of social welfare legislations, this Act compromises the promises of the Constitution.

We are grateful to Bipin Aspatwar, Marc Galanter, Vikramaditya Khanna, Madhav Khosla, and Jayanth Krishnan for their incisive comments. Menaka Guruswamy (menaka.guruswamy@ gmail.com) practises law at the Supreme Court of India, Aditya Singh (mail.adityasingh@ gmail.com) is a nal year student at the National Academy of Legal Studies and Research, University of Law, Hyderabad.

quality and justice are indisputably two key facets of the idea of a modern, democratic and constitutionadhering India. The principles of equality and justice are realised by the State apparatus through the business of administration of justice. Indias justice system is characterised by systemic problems, including corruption, delays, pendency, increasing costs, limited legal aid, and a lack of appropriately trained lawyers and judges. When confronted with the many problems of the legal system, the governments response has been not to invest in and x a broken system, instead it has responded by moving out of the adversarial system with its procedural guarantees, those who have the least voice and use it minimally Indian citizens, who live in rural areas, with small claims, both civil and criminal in nature. The government does this with the passage of the Gram Nyayalayas Act, 2008 (hereinafter referred to as the Act). This Act perpetuates the phenomenon of two Indias that of the better resourced urban citizen who can afford and has access to the courts. And, the other India of the impoverished the more disconnected rural citizen, who gets primary
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access to forums that focus primarily on disposing of their claims, minus the application of essential safeguards of the legal process lawyers, appeals, procedural protections and evidentiary requirements. The Act provides for the establishment of nearly 5,067 gram nyayalayas or village courts across the country. The avowed objective is to provide access to justice to the citizens and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities. In his address on the eve of the National Law Day, the Chief Justice of India underscored the importance of this initiative as he asserted that this would bring the justice delivery system closer to rural citizens. Since a small number of gram nyayalayas have become operational from 2 October 2009, information on the implementation of these village courts is not available. Hence, we discuss the provisions of the Act and the problems associated with it.

The Gram Nyayalayas Act, 2008

This Act is not the rst legislative attempt at establishing a hybrid or informal tribunal like system, ostensibly located in some version of an indigenous system of dispute resolution. Nyaya panchayats and lok adalats were created with the same objective of dispensing speedy justice in informal settings. Galanter and Krishnan (2004: 789) document and analyse the experiences in nyaya panchayats and lok adalats (peoples tribunals). Both forums, derived according to them from, sentimental and
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symbolic support from appeal to the virtues of the indigenous system (ibid). They note that the informalism of the lok adalat with its emphasis on compromise and speedy disposal could disadvantage weaker parties. The lok adalats are not bound by of Civil Procedure Code 1908 (CPC) and the Indian Evidence Act, 1872. According to the authors, lok adalat judges appeared to be overbearing and coercive to the parties before them especially poor and un-represented parties. The authors observe that critics of the lok adalats see in these moves portents of a dismantling of legality in favour of paternalistic, intuitive kadi justice for the poor. They add further that
the absence of appeals, the exclusion of lawyers, and the shift of decisional standards from legal principles to principles of justice suggest a major enlargement of the presiding judges discretion and robust faith that the poor have more to gain from benign paternalism than from juristic or popular legality (ibid).

magistrate. The nyayadhikari is required to periodically visit the villages under her jurisdiction and conduct proceedings in close proximity to the place where the parties normally reside, thus functioning as a mobile court. Gram nyayalayas have both civil and criminal jurisdiction much like ordinary lower courts. It may take cognisance of an offence on a complaint or on a police report and shall try all offences specied in Part I of the First Schedule and Part II of that Schedule and also try all such offences or grant such relief under the state acts which may be notied by the state government. Section 13 lays down the civil jurisdiction of the gram nyayalayas and provides that it shall have jurisdiction to try all original suits and proceedings of a civil nature falling under the classes of disputes specied in Part I of the Second Schedule and try all claims and disputes which may be notied by the central government and by the state government.

includes most property disputes and claims arising from Payment of Wages Act, 1936 and Minimum Wages Act, 1948 within the scope of civil jurisdiction of the Nyayalaya. Evidently, most of these legislations directly affect the impoverished. These are social welfare legislations which require careful and sophisticated adjudication. That this Act does not incorporate proper procedures is even more troubling, given the nature of disputes that will come up for consideration of these courts. (ii) Circumscribed Right of Appeal: The most problematic part of the Act Part VII deals with appeals. Section 33 provides for appeals in criminal cases. Subsection (1) provides that notwithstanding anything contained in the CrPC or any other law, no appeal shall lie from any judgment, sentence or order of a gram nyayalaya except as provided hereunder. The Act already prevents appeals in cases where the accused person has pleaded guilty or where the gram nyayalaya has passed a sentence only of ne not exceeding Rs 1,000. This leads up to the legally unjustiable, Section 34 (2) that provides that no appeal shall lie from any judgment or order passed by the gram nyayalaya (a) with the consent of the parties; (b) where the amount or value of the subject matter of a suit, claim or dispute does not exceed Rs 1,000; (c) except on a question of law, where the amount or value of the subject matter of such suit, claim or dispute does not exceed Rs 5,000. It is crucial to note that Sections 33 and 34 provide for appeals in certain cases to the court of session and the district court, respectively. Hence, a party can appeal the nyayadhikaris decision to a sessions court for criminal matters which must be decided in that forum by that judge within six months. For civil matters the appeal should be directed to district court which must decide it within six months. However, the Act prevents any further appeal after the decision of the court of session or the district court. Section 33 (7) provides that the decision of the court of session shall be nal and no appeal or revision shall lie from the decision of the court of session. Similarly, Section 34 (6) provides that the decision of the district

Inadequacies of Gram Nyayalayas

The Act contains provisions which are likely to result in the unjust exclusion of the impoverished from just legal processes thereby restricting access to justice. (i) Nature of Offences within the Domain of Gram Nyayalayas: Schedule I of the Act lists those offences which can be adjudicated by the gram nyayalayas. Within its criminal jurisdiction, theft; concealment, disposal and receiving of stolen property; and insult with intent to provoke a breach of the peace are some of the offences that can be decided by these courts. Vitally, offences which are not punishable with death, imprisonment for life or imprisonment for a term exceeding two years are also included within the scope of its jurisdiction. Part II of this Schedule lists some statutes and offences committed under these Acts within the ambit of the criminal jurisdiction of the gram nyayalayas. Some of these include the Payment of Wages Act, 1936, the Minimum Wages Act, 1948, the Protection of Civil Rights Act, 1955, the Bonded Labour System (Abolition) Act, 1976, the Equal Remuneration Act, 1976 and the Protection of Women from Domestic Violence Act, 2005. Schedule II
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The gram nyayalayas capture all the weaknesses of the nyaya panchayats and lok adalats, and the problems associated with these forums would apply equally to this most recent version of the ostensible indigenous dispute resolution forum.

Intent and Jurisdiction

The Act provides for the establishment of gram nyayalayas for the purpose of providing access to justice and to ensure that speedy justice is not denied to any citizen for reasons of social, economic or other disabilities. The gram nyayalaya will be the lowest court of subordinate judiciary in a state and shall be in addition to the regular civil and criminal courts. The Act is broadly based on the recommendations of the Law Commission of India, which had in its 114th report suggested the establishment of such courts in order to provide speedy, inexpensive and substantial justice to the common man. Under the statute, gram nyayalayas are to be established by the state government in consultation with the high court. These are to be established for every panchayat at the intermediate level and will be headed by a nyayadhikari, who shall have the qualications of a rst class judicial
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court shall be nal and no appeal or revision shall lie from such decision. The revised version of the bill that was nally enacted also contains a proviso which allows for availing of judicial remedies available under Articles 32 and 226 of the Constitution. Therefore, for almost all matters that will be decided by the gram nyayalayas, there can be only one additional appeal to subordinate courts. Within the part of the Act, there are also concerns regarding the time limit imposed on ling an appeal against the decision of the gram nyayalaya. As per Section 33 (4), every appeal shall be preferred within a period of 30 days from the date of judgment, sentence or order of a gram nyayalaya in a criminal case. This is similar to Section 34 (3) which lays down the same restrictions for civil cases. The Parliamentary Committee which commented on the 2007 Gram Nyayalaya bill had criticised this provision and stated that there were no valid reasons as to why the period of limitation provided in the Criminal and Civil Procedure Codes should not be made applicable to gram nyayalayas (Department Related Parliamentary Standing Committee: 26). In spite of these recommendations, the Act continues to set a bar on the time period which is less than the time prescribed in the procedural laws. This is another example of the Act compromising on proper procedure and is bound to create difculties for parties involved in litigation at the level of gram nyayalayas. (iii) Summary Procedure and Plea Bargaining: Gram nyayalayas shall follow summary trial procedure in criminal cases. This runs contra to the CrPC that normally governs all criminal trials in the formal court system. Section 20 provides that any person accused of an offence may le an application for plea-bargaining in the gram nyayalaya in which such offence is pending trial and the gram nyayalaya shall dispose of the case in accordance with the provisions of the CrPC. This provision for plea-bargaining must be read in the context of Section 33(2) (a) which provides that no appeal shall lie where an accused person has pleaded guilty and has been convicted on such plea. Further, plea-bargaining has been introduced in the CrPC, which governs the

adjudication of criminal disputes in the court system. The Law Commission of India in its 142nd report had recommended a competent authority, a metropolitan judge or magistrate of the rst class or two retired high court judges (depending on the gravity of the offence) would be appointed as plea judges. The accused would le an application for a plea bargain to the plea judge. This would ensure that the accused could still get a fair trial from the regular judge should the plea bargain not go through (Tewari and Agarwal 2006). The 154th Law Commission felt that in the Indian context bargaining with a prosecutor would be hazardous and a competent authority would safeguard the principle of a fair trial. Unfortunately, the Gram Nyayalayas Act does not provide for such a competent authority. The application for plea-bargaining is to be led with the court itself. Therefore, if such an application is rejected, this would in turn have an undue bearing when the trial is conducted. (iv) Interests of Justice: While the scheme of the Act which details the special procedure in civil disputes is not entirely undesirable, it is worthwhile to appreciate that Section 24 (7) provides that the proceedings shall, as far as practicable, be consistent with the interests of justice. This provision employs non-binding language and is conditional while dealing with an issue of prime importance. Any proceeding in a court of law must be consistent with the interests of justice in all circumstances; however, this provision allows for non-compliance when it is not practicable. (v) Civil Court sans Civil Procedure: In terms of civil suits, the gram nyayalaya has the power of a civil court, and the judgment passed by it shall be executed as if it were a decree of a civil court. However, the forum shall not be bound by the procedure in respect of execution of a decree as provided in the CPC and it shall be guided by the principles of natural justice. Section 30 of the Act dealing with the application of the Indian Evidence Act, 1872, provides that a gram nyayalaya may receive as evidence any report, statement, document, information or matter that
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may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the said Act. The Act envisages day to day hearing with summary procedure and pronouncement of judgment within 15 weeks from the date of the last hearing. The proceedings shall be in one of the ofcial languages of the state other than English, as far as practicable. The parties may argue their own case but they also reserve the right to engage a lawyer to represent them. The Act also places a duty on the gram nyayalayas to provide for conciliation and settlement of civil disputes for which they shall follow the procedure prescribed by the high court. (vi) Police Assistance: The Act also seeks to provide for assistance of police to the gram nyayalayas, wherein every police ofcer functioning within the local limits of jurisdiction of such a court shall be bound to assist in the exercise of its lawful authority. Further, it binds the police ofcer or any other government servant to provide assistance when so directed by these courts. Galanter and Krishnan document the manner in which police assistance has affected the functioning of the Electricity Lok Adalats (Galanter and Krishnan 2004: 812). The police, they note, in fact appear and advocate for the electricity companies. They point out how the police representatives act as the lead advocates not only in criminal matters but also in several other billing disputes (ibid). The authors refer to Julia Eckerts description of the Shiv Sena courts in Maharashtra, where police representatives act as interpreters and arbitrators of the law (ibid). Given the similarity in the setting of lok adalats and gram nyayalayas, there are bound to be similar difculties with the explicit inclusion of a provision warranting police assistance in the Act. In a system which compromises on issues of due process and prevents the usual number of appeals, it is dangerous to allow the police to offer assistance which may lead to coercion of the litigants.

Conclusions
The government should appreciate that the aim of adjudication is not merely peace, or the maximisation of the ends of
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private parties (Fiss 1984: 1073). It is to give force to constitutional values and ensure that such values infuse the content of the true aim of adjudication justice. A statute that is created only for people residing in rural areas, with limited procedural guarantees, to adjudicate allegedly small claims including those that implicate a litany of social welfare legislation concerning Minimum Wages, Civil Rights,

Abolishing Bonded Labour, Equal Pay and Protection from Domestic Violence compromises the promises of our Constitution. It makes a mockery of that which is most sacred to all law that power, resources and the quantum of private gain will not determine the aims or means of the process that is adjudication. The Gram Nyayalayas Act violates this essential foundation of adjudication.

References
Department Related Parliamentary Standing Committee: Committee on Personnel, Public Grievances, Law and Justice, 22nd Report on the Gram Nyayalayas Bill, 2007. Fiss, Owen M (1984): Against Settlement, Yale Law Journal 93:1073. Galanter, Marc and Jayanth K Krishnan (2004): Bread for the Poor: Access to Justice and the Rights of the Needy in India, Hastings Law Journal 55:789. Tewari, Sulabh and Tanya Agarwal (2006): Wanna Make a Deal? The Introduction of Plea Bargaining in India, Supreme Court Cases (Cri) (Jour) 2:12.

Implementation of the Maharashtra Universities Act

B Venkatesh Kumar

An evaluation of the implementation of the Maharashtra Universities Act, 1994 shows that individuals who excel in electoral arithmetic, rather than academics or academic administrators, occupy important posts in universities. The state government has appointed three committees to suggest reforms in higher education. Not only is there a need for a new legislative enactment, these committees also face the challenging task of recommending changes that will lead to academic freedom and accountability in the states universities.

ecently, the Government of Maharashtra announced the formation of three committees to suggest measures for reform of higher education. While two of these have been given the task of looking at the existing Maharashtra Universities (MU) Act, 1994, recommending new legislative enactments, and bifurcation of universities, the third committee has been given a much broader mandate. It has been asked to suggest ways and means to improve the standard and quality of higher education. There are other issues which they are mandated to look at within a holistic framework (http://techedu.maharashtra. gov.in/english/dcmNew/index_UC.php? departmentCode=2402) of reforms. This raises several concerns. First, with three committees there is the risk of contradictory recommendations. Second, there is no representation from the social sciences and the legal eld, both essential for (re)drafting of the Act. Third, the committees recommendations will be examined by another committee chaired by the education minister. The political control over higher education in Maharashtra is so deeply embedded that reforms leading to academic freedom and excellence look like a distant possibility.

of political elites setting up educational institutions for public good, has decided to get its house in order by looking at reforming the public universities. It is quite intriguing because the same political class that governs a large number of educational institutions in the state (in fact, they believe that healthy public universities are a threat to their institutions) are now looking at reforming these universities! The current initiative in Maharashtra is in continuation of the landmark reform process that was initiated by the state government at the instance of the former Governor and Chancellor of Universities, S C Jamir. These reforms, initiated in 2009, were aimed at improving the governance of universities in the state, some of which achieved the desired outcomes (Kumar 2009). This article examines the current state of higher education in Maharashtra and the implementation of the MU Act of 1994. It also looks at issues of external and internal constraints which have led to the deinstitutionalisation of many universities. Such deinstitutionalisation in turn has resulted in a severe crisis of governance. There is need for a new legislative enactment and a diversied institutional design for universities a challenge these three committees will have to address.

Current Status
An independent study for the Planning Commission (Pethe et al 2009) for the midterm review of the Eleventh Plan, which draws heavily from the Maharashtra governments statistics, has interesting pointers. While the Gross Enrolment Ratio (GER) for India is about 13.1%, Maharashtras GER is 13% in higher and technical education. On the other hand, while the GER for vocational education is

Interesting and Intriguing

B Venkatesh Kumar (venk71@gmail.com) is with the Tata Institute of Social Sciences, Mumbai and currently a Hubert Humphrey Fellow at Penn State University, United States.
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The state governments decision to overhaul the higher education system is both interesting and intriguing. It is interesting because Maharashtra with its long tradition
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