CHAPTER VIII

NYAYA PANCHAYAT IN INDIA

 CHAPTER VIII

NYAYA PANCHAYAT IN INDIA

8.1 Introduction

Local self-government, to borrow a phrase from Sydney Webb, is “as old as the

hills”. This can be more true of India than any other country of the world. There is

sufficient evidence to establish the fact that the institution of local self-government is

almost pre-historic, and the conception of local self-government is indigenous to the

Indian soil. Municipal governments have flourished in India since times immemorial.

While empires rose and fell, village panchayats which formed an integral part of the

national life, helped to preserve democratic traditions in social, cultural, economic and

political life, survived the onslaughts of centuries of political upheavals and saved Indian

society from disintegration.1 2The existence of local bodies in ancient India is a positive

proof of the inherent genius of our people to manage local affairs efficiently and on a

decentralised basis. The decentralisation of power in the kingdoms of the Maurya and the

Gupta period was unique. Such devolution of power was unknown to the western world

until modem times. The local governments at different levels, performing many

functions, though not very democratic, were sufficiently autonomous.

'Raj' literally means governance or government.3 Panchayat is an ancient

institution as antique as India. In fact, it has been the backbone of Indian villages since

the beginning of recorded history. Rabindra Nath Tagore also supported and he was of

the view that our aims must be to restore to the Villages the Power to meet their own

1 Sir Jadunath Sirkar - Mughal Administration - page 10

2 Ibid
3 http://ed.wikipedia.org/w/index.phptitle=Panchayat & redirect, ‘Panchayat’ literally means assembly (yat) of five
(panch) wise and respected elders chosen and accepted by the village community.
requirement.4 Gandhiji, the Father of the Nation, in 1946 had aptly remarked that the

Indian Independence must begin at the bottom and every village ought to be a Republic

with Panchayat, having powers. Gandhiji's dream has been translated into reality with the

introduction of the three-tier Panchayati Raj System to ensure people’s participation in

rural reconstruction.5 The institution of Panchayati Raj is specifically designed for rural

population to take care of the problems of rural areas. It provides the administrative

apparatus for implementation of the programmes of rural development.6 The basic

objective Panchayati Raj is to evolve a system of democratic decentralization and

devolution of power with a view to ensuring rapid socio-economic progress and speedier

and inexpensive justice.Traditionally, these assemblies settled disputes between

individuals and villages.7

The Nyaya Panchayat was an informal and indigenous form of adjudication, where

there was informal hearing, no legal representation, examination of witnesses and judgement

pronounced in open court. The term Panchayat literally means council of five. The principle

underlying Panchayat is “Panch Parmeshwar” which means God speaking through five.

Ensuring a corporate life and being the pivot of administration and real centre of social life,

the institutions occupied a prestigious position.8

The village communities have been described as little republics, almost free from

external dependency.9 In the view of Will Durant, who is an American thinker “the village

community in ancient India - the Panchayat and democracy that have ever been evolved in

various parts of the world.”10 Democracy, which derives its strength from the people, needs

4 Developed by ASCOSYS, Guwahati, C P & RD Directorate of Assam

5 Ibid
6http://www.whatisindia.com./isses/mahatmag/index,html
1 Ibid.
8 B.K.Raina, Working of Panchayati Adalats, A Case Study, Cochin University Law Review, p. 33.
9 EJJRapson, Cambridge History of India, (1935) p, 177.
10 As quoted in S.R.Nigam, Local Govt. England, France, U.S.A., U.S.S.R and India (1978) p.216
219
their meaningful participation in local governance to make society vibrant and the country

prosperous and strong. The passage of the Constitution (73rd Amendment) Act, 1992 marks a

new era in the federal democratic set up of the country and provides Constitutional status to

the Panchayati Raj Institutions (PRIs). Consequent upon the enactment of the Act, almost all

the States/UTs, except J&K, National Capital Territory (NCT) Delhi and Arunachal Pradesh

have enacted their legislations. Except Assam, Arunachal Pradesh, Bihar, NCT Delhi and

Pondicherry, all other States/UTs have held elections. As a result, 2, 27,698 Panchayats at

village level; 5,906 Panchayats at intermediate level and 474 Panchayats at district level have

been constituted in the country. These Panchayats are being manned by about 34 lakh elected

representatives of Panchayats at all levels. This is the broadest representative base that exists

in any country of the world - developed or underdeveloped.11

In India, majority of the population lives in villages. Today, Panchayats are the

bedrock of India’s rural development and poverty alleviation efforts. It has the potential of

building a progressive India in harmony with the felt needs and the aspirations of the

people. Generally disputes among villagers are of small in nature, which can be decided

easily in practical way of settling disputes that is free from the technicalities involved in

urban court process. Recently two additional ADR forums originated with main purpose is

to access to justice. First, the modem Nyaya Panchayats have been in existence in

accordance with traditional village customs as well as post-independence state legislation.

There have been several recent suggestions for its implementation on a national scale.

Second, the Lok Adalats, have been utilized informally in the past, but has recently

received statutory status on the national level.12

11 Developed by ASCOSYS, Guwahati, C P & RD Directorate of Assam

12 The Lawyers, January, 1990, P.6.
220
8.2 History of Nyaya Panchayats

In India, Nyaya Panchayats have existed since ancient times and played very

important role in dispute resolution in villages. In Vedic age there were in existence of

Panchayat republics. The Vedic Sabha and Samiti were having elected bodies including

representative in character with Ml voting rights to women. These institutions could probe

into the conduct of kings, the misdeeds of the ministers and the abuse of power by the

powerful. An ancient Indian republic was a state where the strong were just and weak

secure. The Vedic king was the protector of the people i.e., Janaya, along with that the

self-governing institutions of ancient India ran parallel in the villages. They were the
1T
backbone of the true Indian democracy.

Village elders used to resolve disputes of villagers. These elders acquainted with

the people, local customs, conditions, language, habits and practices of these people and

so they could easily find out the reason behind any dispute. All the material evidence to

prove their respective cases present in village itself and there was no question of

concocting evidence arose. The Panchas used to resolve the problems publicly and public

opinion acted as a powerful influencing factor. Usually witnesses could not speak lie in

front of Panchas and other villagers who knew the truth. Decisions of the Panchas were

final and supreme.14 Thus all these facilitated quick, inexpensive and fair decisions.

In the ancient Smriti texts we also find reference of some village institutions viz.,

Kula, Sreni and Puga.15 In 1673 the president of East India Factory at Surat (Aungier) set

up community Panchayats in Bombay, which decided disputes amongst people of then-

own caste and community. The pre-independence try to bring back to the existence of the

local units of administration throw a flood of light on the aspect that some efforts were
13 Ibid.
14 Indian Bar Review, Vageshwari, P,74
’ Ibid
221
made to reorganize rural self-government through Panchayat. Between ancient, medieval

and modem period, the growth of Panchayats had ups and downs. The famous Mayo’s

resolution of 1870 gave impetus to the development of local institutions by enlarging their

powers and responsibilities, in 1882 Lord Ripon’s provided democratic framework to

these institutions. In fact the Mayo Resolution of 1870 on decentralization, Lord Ripon’s

famous Resolution of 1882, the Report of Royal commission on decentralization, the

Government of India Resolution of 1915, and the Montague-Chelmsford Report of 1918

stand as a testimony to reorganize the working of village courts, through not intended to

reproduce the characteristics of old time Panchayats.16 Thus India’s practice has been one

long story of seeking access to village people through their participation in the working of

village courts. By and large, India created an institutional infrastructure in her quest for

public participation.17 British mlers set up their courts to resolve the disputes. The people

too realized that the power of State was behind these courts and not behind old village

Panchayats. Hence the importance of the Panchayats day-by-day started losing their

importance. The commission took into account the subject of local self-govt and strongly

recommended development of Panchayats to administer local village affairs. In 1920 in

consequence of that many enactments were passed in different states. A lack of systematic

control over the administration of justice in villages, characterized the system. Nyaya

Panchayaths in accordance with customs decided disputes. Village elders or mlers were in

frequently influential in these Nyaya Panchayaths. Sanctions were often in the form of

fines, public disfavour or outright banishment from the village. With the advent of British

colonialism, which greatly dismpted village life, Nyaya Panchayats fell into disuse. In

1920-21 Gandhi, during the non-cooperation movement, spoke in favour of boycott of law
16 H. Tinker, Foundations of Local Self Government in India, Pakistan and Burma (1954), p. 298.
17 Upendra Baxi and Marc Galanter, “Panchayat Justice: An Indian Experiment in Legal Access” in M. Cappelleti
(ed), Access to Justice (1979) Vol. Ill, p.343.
222
courts and favoured village Panchayats for settling disputes so that poor peasants did not

have to go to far off towns to seek justice and waste their hard earned money and time on

litigants and be exploited by lawyers. Professor N.G.Ranga observes that “without this

foundation stone of village Panchayats it would be impossible for our masses to play their

rightful part in our democracy.”18 Gandhi concluded his outline of village government in

the following words19 “The Panchayats will be the legislatures, judiciary and executive

combined”.

Gandhi compared Gram-Rajya to Ram Rajya and his main aim was to assert the

values of Panchayat justice with a strong zeal to build an atmosphere in which the political

system based on Western pattern could be consciously corrected. D.S. Seth too intended

that the Government system should be founded on the Panchayati institution, since he

viewed that too much concentration of powers makes that power totalitarian and takes in

fascist ideals. H.V.Kamat stated that Indian polity in ancient times was securely built on

village communities, which were autonomous and self-contained: that’s why Indian
f\fS

civilization has survived through all these ages. Thus the Congress lobby in the

Constituent Assembly unequivocally stated that Panchyati Raj was the basic touchstone of

our ancient political philosophy and for that reason it should find place in the Constitution

of country.

8.3 Post-Independence Period: From the analysis of Constituent Assembly Debates it is

clear that the Ambedkar group23 rejected the philosophy of the supremacy of Panchayati

18 Cited in M. Venkarrangian and M. Patabiraman, Local Government in India (1967), Vol. IX p. 343.
19 Ibid., p. 247.
20 G Austin, The Indian Constitution: Cornerstone Of A Nation (1966), p. 50: and Upendra Baxi, “The Little Done,
The Vast Undone: some Reflections on Reading Granville Austin’s, The Indian Constitution, Journal of Indian Law
Institute (1967), Vol IX p. 343.
21 Constituent Assembly Debates, Vol. VIII, p. 219.
22 Ibid., p. 219.
23 The views of Dr. Ambedkar were supported by N.G. Ayyanagar, K. M. Munshi, Saiyed M. Saddula, B.L.Mitter
and Dr. D. P. Khetan.
223
Institutions. Perhaps for that reason the Draft Constitution did not make any reference to

Panchayat Institution. In fact socio-political factors did play a momentous role in the non­

inclusion of the name of the Panchayati institution in the Draft Constitution. Dr R.S.Rajput

has rightly observed that Dr. Ambedkar and his social background as the principal reason

for this omission. He said:24

“But so far as Dr, Ambedkar is concerned, he was born in a village

and belonged to Schedule Castes. His Caste had suffered a lot in the villages

at the hands of upper castes. The institutions of Panchayats had no regard

for the backward communities in villages. It was only in the cities where they

could breathe freely. The writing of Dr. Ambedkar had focusssed on the

oppression of the Scheduled Castes in the villages and preferred the city life.

He had included everything which was useful for the cities but not for the

villages... That perhaps could have been the reason for ignoring the villages

in the Draft Constitution. ”

For non-inclusion of Panchayati Institutions in Draft Constitution, there are also

divergent views. The Congress lobby attributed political cause for this non-inclusion.

H.V.Kamat was of the opinion that the principal cause for non-inclusion was the

composition of the Draft Committee itself. None of the members except Sri Munshi had

taken active part in the struggle for country’s freedom and therefore had failed badly to

catch the imagination of entering into the spirit of our struggle. Besides this another

criticism against the composition of drafting Committee is that no part of it represented the

ancient polity of India.25 Consequently all this contributed into the non-inclusion of the

24 R.S.Rajput, The concept of village Republics and sprit of Article 40 in R.S.Rajput and D.R.Meghe (Ed), Panchayati
Raj in India: Democracy At Grassroots (1984), p. 54.
25 Upendra Baxi, Access, Development and Distributive justice: Access Problems of the
Rural Population”, Journal of Indian law Institute, Vol. 18, July-Sept., 1976, No. 3, p, 375 at 394.
224
Panchayati Raj Institutions in the Draft Constitution. The whole course of the

Constitutional development discloses that the lack of strong ‘political will’ right from the

very beginning of the time when the Constitution was drafted, decentralization of powers

to these institutions was neglected. The Pachayati Raj institutions were accorded

secondary position and also did not provide an independent provision but as the

submerged provisions finding place amongst the scattered non-justifiable provisions as

Directive Principles of State Policy.26 Directive principles of State Policy depend upon

purely on the will of the government for their implementation. The Constitution as it

emerged did not include certain village-oriented Directive Principles of State Policy.

Pachayats were included in Article 40 under the Directive Principles of the

Constitution of India. The importance of this article is that the power of the people, which

is the soul of a republic, stands subverted if decentralization and devolution desiderated in

Article 40 is ignored by Executive in action even after holding elections to the floor-level

of administrative bodies. Hence to materialize the aim of democracy, the Power to

organize Panchyayati Raj Institutions has been vested in the States. Entry No. 5 in the

State List of Seventh Schedule provides, “the local government that is say, the

Constitution and powers of municipal corporations, improvement trust, district boards,

mining settlement authorities and the other local authorities for the purpose of local self-

government or village administration29”

26 Constitution of India, Part-IV Article 37. This Article enacts, “The provisions contained in this part shall not be
enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the
country and it shall be the duty of the State to apply these principles to made laws”.
27 For instance, Article 48 urges the State to “endeavored to organize agriculture and animal husbandry on modem
and scientific tines”. To promote the well being of agriculture workers, Article 42 exhibits the State “to endeavor to
promote cottage industry on an individual or cooperatives basis in rural areas. The State is directed, by Article 46 to
“Promote with special care” the educational and economic interests of the weaker sections of the people and in
particular of the Schedule Castes and Tribes who shall be protected against injustice and “all forms of exploitation”
28 N.M.Kheni v Manik Rao Patil, AI R., 1977 SC 2171.
29 Ibid
225
 The underling principle hidden in the Article 40 is that village Panchyats as units of

self government would go a long way in ensuring democratic decentralization and creating

an exhilarating feeling and a sense of confidence among the villages in the sphere of

decision making.30 Hence the Panchayats has simulated a special significance in the

context of the fundamental aims of our political, economic and social development of our

country. These institutions are expected to be as sin qua non of our rural programmes

especially related to rural India to fight against poverty, injustice and exploitation.31 The

purpose of Article 40 is: “If India is to progress it must so through reawakened village

life. The philosophy behind under this Article is to introduce democracy at the grassroots

level and promote tree mains aims:33

a) to foster the involvement of individuals throughout the nation in the process of

democratic government

b) to gain participation of villagers in national development from the village upwards

and thus promote improvements in the village conditions and render justice -

political, social and economic as envisaged in the very preamble of our

Constitution, and

c) to lessen the burden of state administration through decentralization.

Gandhi considered the villages Panchayats as the foundation of self-government in

the country. The concept of society as per the view of Gandhian was that of oceanic

structure comprising of concentric circles of life and vibrant communities of which the

village or primary face-to-face community was to be the hub. Jayaprakash Narayan, at the

time agreeing with Gandhian philosophy more elaborated the concept of Panchayati Raj in

30 Sibnath Bhattacharya, Rural Poverty In India, (1989), p. 137.

31 Ibid
32 Supra note, 24, p. 61.
33 Henry Meddick, “Panchayati Raj”, Journal of Local Administration Overseas, October 1962. p. 61.
226
the form of “Communitarian society.”34 In Gandhi’s dream of Panchayati Raj and his

concept of power structure, life was picturised as, consisting of concentric circles

dependent and complimentary to one another.”35 According to him, “Administration of

justice by Panchayats in village would be speedy, efficient and quick, would discourage

litigation and help settlement of disputes out of the court by agreement among the parties.

It will also lay foundation of non-violent democracy fostering love of justice among the

people.’36 He further gave the idea of Trusteeship and supported the view that the State

was under the duty to carryout the will of the people and not to dictate them.

Just after independence Gandhiji recommended that India’s independence must

commence at the bottom, so that the character of India’s independence as conceived by the

Congress was based on Village autonomy. The Post-independence phase of Panchayat Raj

is inscribed with significant developments. In an attempt to usher in social-economic and

cultural transformation in the countryside, in 1952, the government of India launched a

Comprehensive Community Development Programme encompassing almost all activities

of rural development. Nevertheless, the programme could not make much progress in

realizing the dreams of the rural masses. In order to investigate the causes for its failure,

the Govt, of India set up a high power study team in 1957, headed by Balwant Raj Mehta,

a member of parliament. The team detected that the failure of the community

Development Programme was due to the conspicuous; the team recommended that a set of

institutional arrangements would have to be formed. This resulted in the creation of a

“three tier” system of Panchayati Raj institution to organize and manage the rural

development through the participation of people. By 1959, all the states, had passed

Panchayat Acts and by mid of 1990s Panchayats had reached all the parts of the country.

34 Supra Note 24, p. 18.

35 ru;a «

227
The framework of new institutional arrangement comprised “Village Panehayat” at the

base. “Panehayat Samities” at the middle and “Zilla Parishad” at the base.37

But the excitement and support for Panehayat did not last long. The indifference

towards Panehayat started growing. The Central Government headed by the then Prime

Minister of India, Moraji Desai appointed another committee under the chairmanship of

Sri Ashok Mehta in 1977, to report on the status of Panchayati Raj institutions and

recommended measures for their revitalization adoption of a two-tier system at District

and Mandal level and establishment of a finance body like Panchayati Raj Finance

Corporation for providing credit to the Panchayats.38 The Gram Sabha has been removed

from Panchayati Raj institutions (PRIs) in India. The removal of Gram Sabha has

distanced the people at the grass-root level from the PRIs and within a short period the

entire PRI become inactive and moribund in almost all states. In order to reinvigorate and

revitalize Panchayats, the Govt, of India had again appointed G.V.K Rao committee

(1985) and L.M.Shingvi committee (1966). Both the committees recommended, inter-alia,

the following:

1) To grant Constitutional status to the Panchayats;

2) Devolution of financial resources to the PRIs;

3) Conversion of PRIs from two-tier to three-tier by reintroducing Gram Sabha in

the structure.39

In 1989, the Rajiv Gandhi government, on the recommendations of the G.V.K.Rao

(1965) and L.M.Shingri (1986) committees, introduced a Bill for amending the

Constitution for giving Constitutional status to Panehayat’s, but he did not succeed in

doing so. In 1992, it was P.V. Narashimha Rao Government who could amend the
37 Ibid.
38 The Committee on Panchayati Raj Institutions, Ministry of Agriculture and Irrigation (1978), P.IV.
39 Ibid
228
Constitution by introducing 73 rd Amendment to the Constitution along with the

Nagarpalika 74th Amendment Act.40

8.4 Constitution of Nyaya Panchayat

Several committees and commissions have closely scrutinized the Panchayat’s

justice system and have recommended for its retention and revitalization on the all India

level. Because of the increasing attention surrounding the Panchayat’s movement and the

pressing need for judicial reform, the recommendations of some of these groups warrants

further discussion.41 The most modem and most extensive of these, the Law Commission

of India’s “114th Report on Gram Nyayatayats” (August 1986, chaired by justice D. A.

Desai, hereinafter “LC Report”). The recommendations of the report of the expert

committee on Legal Aid, Procedural Justice to the people” May 1973, chaired by justice

Krishna Iyer (hereinafter “ECLA Report”), which for the most part are congruous with the

recommendations of the LC Report42

The Constitution of India supports the introduction of democracy at the grass root

level. Article 40 directs that the State to take steps to organize village Panchayats and

provide with them such powers and authority as may be essential to enable them to

function as units of self-govt. Number of States have enacted laws for organization and

proper functioning of Panchayats. Nevertheless these Panchayats were not functioning up

to the mark due to irregular and uncertain election. In order to imbue with new life and

vitality the Panchayati Raj institutions, Part IX was added to the Constitution by

Constitution Amendment Act, 1992 popularly known as Panchayats Raj Amendment

Act.43

40 Ibid
41 Lawyers, January, 1990, P.8
42 Ibid
43 http://www.isec.ac.in/Public%20Lecture%20Abstrac
229
 Now, however, the 73rd Constitutional amendment has provided Constitutional

sanction to democracy at the gross root level. The present amendment envisages Gram

Sabha as the foundation of this system and provides for a three tier of Panchayat Raj

system at the village, intermediate and district level. Gram Sabha is a body comprising of

all persons of a village registered as voters. Small States with population of less than 20

lakhs may not constitute Panchayats at intermediate level. The amendment makes certain

their regular elections after every five years and also provides for reservation of seats to

members of Scheduled Castes and Scheduled Tribes and women in the Panchayati Raj

bodies. The Panchayats have been given financial and administrative powers and whereas

their establishment and devolution of essential powers and authority of the Panchayat are

conferred in the State Govt. After coming into force of Panchayati Raj Act on 23rd March

1994 nearly 50 to 60 % of the States and Union Territories have either amended their old

Panchayati Raj Acts or have enacted new legislations.44

Recently in Karnataka the Government with view to give more power to

Panchayats has introduced an amendment bill. The said amendment to the Panchayat Raj

Act virtually puts MLAs in the driver’s seat in respect of the selection of any beneficiary

for any scheme. Currently the grama sabhas are the deciding body in this regard and the

only platform we have that recognises true participation for every citizen to participate in

decision-making. This amendment revokes this right. The message is loud and clear:

people are now being held to ransom by their MLAs, who want to usurp virtually all

powers, including those given to constitutionally mandate local bodies.45

44 Ibid.
45 Nandana Reddy and Damodar Acharya, A Mortal Blow to Panchayat Raj. indian seminar.com
230
8.4.1 Composition

Altogether the seats in the Panchayat shall be occupied by persons chosen by direct

election from territorial constituencies in the Panchayat area. Each Panchayat’s area shall

be split into territorial constituencies in such way that the ratio between the population of

each constituency and the number of seats allotted to it, are same throughout the

Panchayat area.46 The chairperson of a Panchayat at the village level shall be elected in

such way as per the legislature of a State may provide. Similarly the chairperson of a

Panchayat at the intermediate or District level shall be elected by and amongst the elected

members thereof. The superintendence, direction and control of the preparation of

electoral rolls and conduct of whole elections to the Panchayats shall be conferred on State

Election Commission.47

8.4.2 Jurisdiction-Powers, Authority, Responsibilities

Usually the members of Panchayat are at the outset try to resolve the dispute by

consensus. In case when the Panchayat members fail to reach on the consensus then

decision will be by majority.48 The State legislature may provide the Panchayats with such

power and authority as may be essential to enable them to function as an institution of Self

Govt. These comprise preparation of plans for economic development and social justice

and implementation of schemes for social development and social justice consisting those

related to matters listed in the 11th Schedule. In the 11th Schedule the matters which

include are agriculture, land reforms, animal husbandry, poultry, fishery, small scale

industry, rural housing, cottage industries, adult education, health and sanitation, primary

health centers, welfare of weaker sections etc. Besides State legislature may prepare law-

46 Indian Bar Review,Vol.XXX (1) 2003, 74

47 Ibid
48 Ibid 77
231
providing Panchayats with power to levy, collect and appropriate certain taxes, duties tolls

and fees.49

The jurisdiction of Nyaya Panchayats would be exclusive and other courts would

be ousted of jurisdiction of cases within the Nyaya Panchayats domain. The LC report

recommends jurisdiction extending to civil cases (without pecuniary limit) in certain

specified categories, such as inter alia, tenancy matters, boundary disputes family and

matrimonial matters, violations of the minimum wages Act and complaints against local

officials and bonded labour matters.50 It also suggests criminal jurisdiction equivalent to

that of judicial magistrate first class under the Code of Criminal Procedure (with power to

impose a sentence of up to 3 years or fines up to Rs. 5000/- or both). The COJ and ECLA

Reports proposed civil jurisdiction over matters involving less than Rs. 1000/- (although

the ECLA Report recommended jurisdiction up to Rs. 2000/- with written consent of the

parties), criminal jurisdiction equivalent to that of judicial magistrate second class, and

jurisdiction over matters involving family disputes and disputes falling under various laws

which have “limited rural impact.”51

8.4.3 Proposed Structure of Nyaya Panchayats

The LC Report advocates for the establishments’ of Nyaya Panchayats (which it

calls “Grama Nyayalayas” to differentiate them from the ineffective Nyaya Panchayats of

the past), based on notions of participatory justice at the gross-roots level in the village.

These Nyaya Panchayats would operate from their adequately financed headquarters at the

taluka \ tehsil level; and, as far as possible, would dispense justice at the site of the

disputes, at the doorsteps of the people.

49 Ibid
50 The Lawyers, January, 1990. p. 7
51

232
 Each Nyaya Panchayats would be composed of one presiding judge who is legally

trained and appointed as a member of the subordinate judiciary, and two lay judges who have

certain “suggested” minimum qualifications, such as literacy and a higher secondary school

education level. The lay judges would be chosen by presiding judge from a panel selected by

the District Magistrate and the District and Sessions judges and approved by the Chiefjustices

of the state’s High court. The lay judges would bring a commonsense approach and

knowledge of local customs, traditions and behavioral patterns to the Nyaya Panchayats. The

lay judges would attend training sessions. The ECLA Report recommends the use of an entire

lay penal of judges with a secretary trained in law available for the Nyaya Panchayats

consultations.53

The manner, in which the lay judges are chosen, i.e., by the nominative or elective

principle, has been a subject of great debate. However, the LC, ECLA and COJ reports

recommend the use of a nominative/indirect elective principle in order to avoid problems in

the Nyaya Panchayats with caste and communal factionalism, partisan politics and socio­

economic inequality which are often associated with elections.54

8.4.4 Procedure of Nyaya Panchayats

The above three reports identify the need to change the judicial methodology recently

practiced in the court system, which is characterized by the passive role ofjudges, compliance

to mandatory procedural and evidentiary rules, litigiousness and professionalism, to one more

conciliatory, informal, inquisitorial and non-adversarial in character.55 The reflection of the

Nyaya Panchayats should be justice, and not “lawyer law.” For the purpose of speedy justice,

in civil cases, the code of Civil Procedure and the Indian Evidence Act would not be

applicable. Board simplified rules of procedure would be adopted and guided by a Broad

53
Ibid
54
Ibid
55
Ibid
233
sense of relevance” and also the Indian Evidence Act would not apply, in criminal cases.

However, due to Constitutional matters, the Code of Criminal Procedure (or a modified

simpler version of it, devised in accordance with Article 21 standards) would be utilized.56

In the local language of the parties the proceedings of Nyaya Panchayats may be

conducted. The Nyaya Panchayats judges may be a special skill in conciliation tactics and at

the beginning stage required to take a conciliatory approach in resolving any matter “social

harmony” and preventive justice.” In the event of settlement or compromise was not possible,

adjudication would ensue and the judges would follow an inquisitorial, active approach. The

judges would have broad powers to, suo moto, call for information from any source and to

call witnesses, so that no relevant material would escape them.57

8.4.5 Appeals from Nyaya Panchayats: In fact the decisions of the Nyaya Panchayts shall

be informal by justice, equity and good conscience” and by consensus or majority and would

be binding on the parties. Under the LC Report suggestions, questions of law, in order to

prevent injustice, would be resolved by the pressing judge and would be binding on the lay

judges. A limited right of‘revision” to the District Court would be lay only in cases involving

substantial questions of law. A right to appeal would lie, to accord with Article 21 standards,

in criminal cases in which a substantive sentence is imposed. No court fees would be levied
co
on any party.

8.4.6 Appearance of Lawyers: Opinion differs with regard to the question of the

appearance of lawyers at the Nyaya Panchayats. The COJ Report proposes the prohibition of

any lawyers before the Nyaya Panchayats. The ECLA Report proposes the prohibition of

lawyers, save in criminal matters punishable with imprisonment. The LC Report, since of the

expanded and exclusive jurisdiction it recommends proposes that lawyers should be able to

56 Ibid
57 Ibid
58 Ibid P.9.
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appear if a party so desires, but that no adjournments or changes in venue should be granted

for the convenience of the lawyers.59

8.4.7 Past Experience with Nyaya Panchayats

Nyaya Panchyatas have not functioned efficiently in the past. The failures are due to a

number of factors, such as inadequate financial support: ambivalence towards providing even

the minimum facilities for performing adjudicatory tasks, poor training of the lay judges;

extremely limited jurisdiction [including petty criminal and pecuniary limited civil] which

was concurrent with that of the regular court system; a lack of sufficient sentencing and

enforcement powers; long delays in reaching decisions; social and political inequality due to

the fact that the judges were not compensated and therefore were more likely to come from

the landed elite classes; caste and communal factionalism because of the use of the elective

principle in selecting judges; the lack of broad local leadership and popular support; and

ideological ambiguities regarding the rationalizations for the Nyaya Panchayats which have

resulted in the indeterminacy of the statues of both, the Nyaya Panchayats and their judges.60

8.5. Conclusion

Village administration including administration of justice by Panchayats is probably as old as

village themselves. Rural reconstruction can be achieved through changing the mindset of the

rural people, particularly that of the marginalized sections. They should not consider

themselves merely as a cog in wheel, but as the cornerstone of the governing system. This

could only happen when they become participators in decentralized governance, planning,

awareness of existence of laws and development. Governance from grass root level gives

much scope for development, but lack of awareness among the poor, manipulation and

exploitation of the masses by the local elite are blocking the benefits of development from

59 Ibid
60 Ibid

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reaching to the neediest rural people. The challenge of governance in India today is to

democratise the processes and structures of public decision-making for mobilisation and use

of public resources for the common public good. The challenge for ‘governance’ in India, in

practice, is to move towards a new set of standards. From an elite-led model (as demonstrated

by the IAS and other echelons of decision making) to a mass base approach is quite a shift: a

shift from an emphasis on national coherence to local relevance and initiatives, from a system

of one-way accountability to the state to a process of mutual accountability to citizens, this

requires a total culture shift in Indian governance. Such a shift, difficult and contentious as it

may be, is the needed direction to move ‘governance to where people matter’ in India.

Effective rules or laws are essential whatever the degree of decentralization of government.

Therefore, decentralization must be accompanied by more efficient organization of the

primary institutions that make, interpret and enforce laws. Of these, the judicial system may

be the immediate place to start. Given a smoothly operating and independent judiciary,

democracy - which gives constituents the ability to replace their representatives routinely and

easily will be more effective than if it is only a revolving door for opportunism.

Accountability requires the law and democracy to work together. The advantages of Nyaya

Panchayats system as outlined in the various reports discussed above, are many, and such a

system would greatly facilitate increased access to justice for all, including those previously

denied effective access. The Nyaya Panchayats system would ensure public participation in

the administration of justice. The Nyaya Panchayats would instill confidence and help to

alleviate litigants’ apprehensions regarding the judicial systems because of their informal

atmosphere, conciliatory approach, use of local languages and lack of procedural and

evidentiary technicalities, because the adjudication of the Nyaya Panchayats would be based

in part of the local custom and tradition, many of the defects and inadequate of the ill-suited

British judicial system would be eradicated. In making this recommendation, several points

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must be made about the rationalization for the Nyaya Panchayats system First, the nation of the

Nyaya Panchayat as a revitalization of traditional village life must be abandoned. In practice,

given the highly stratified and culturally divergent character of Indian society, a nation-wide

scheme imposed on the villages from above which is not created and organized by each

village according to its particular customs and exigencies, is bound to fail in achieving its

objective of recreating traditional village life. Second, the mere extension of the regular court

system to the village level, without a corresponding simplification of procedure and change in

judicial approach (from adversarial to inquisitional) would be inadequate. Although possibly

reducing the caseload of the higher courts, it would still leave many people without access to

justice because of the expenses, fears, etc., surrounding the regular court system. The only

cohesive and realistically effective rationale for the implementation of a Panchayati system of

justice is that of increasing access of justice for all the citizens of India. By formulating and

implementing an all-India level plan for Nyaya Panchayats based on the particularly model of

justice (utilizing either nominated or elected lay judges) with simplified procedures and the

utilization of a non-adversarial, inquisitorial judicial approach, exclusive and sufficient

jurisdiction and adequate funding, access to inexpensive and effective justice would be greatly

facilitated. However, certain safeguards must be implemented to assure that the landed elite

classes do not dominate the Nyaya Panchayats If the elective to run in the election should be

implemented, including no criminal record, no communal or casteist background, income and

property limits, and the reservation of positions for women, scheduled tribes and castes. If the

nominative method a utilized, then similar qualifications should be set for eligibility for

nomination. If the Nyaya Panchayats system were implemented in this way, many of the

shortcomings of the past ineffective Nyaya Panchayats would be safeguarded.61

61 Upendra Baxi and Marc Galanter, “Panchayat Justice: An Indian Experiment in Legal Access” in M. Cappelleti
(ed), Access to Justice (1979) Vol. Ill, p. 343 also see Law Commission of India: 14(2) Report (1958), p. 874.
237