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of behaviour and thinking. They are not necessarily filled 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 insufficient 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.
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 specifically, 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.
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 Profits Corrupted Biomedical Research? Rowman & Littlefield 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 Sood, A K, M Vijayan, P S Koel, M Rai, K K Talwar and A Datta (2010): “Inter-academy Report on GM Crop”, September, unpublished, downloadable from http://bit.ly/cQbyCI.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 final 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. India’s 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 government’s response has been not to invest in and fix 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 first 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 (people’s tribunals). Both forums, derived according to them from, “sentimental and
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The authors observe that critics of the lok adalats “see in these moves portents of a dismantling of legality in favour of paternalistic. economic or other disabilities. The lok adalats are not bound by of Civil Procedure Code 1908 (CPC) and the Indian Evidence Act. inexpensive and substantial justice to the common man”. gram nyayalayas are to be established by the state government in consultation with the high court. 1936. most of these legislations directly affect the impoverished. magistrate. They add further that the absence of appeals. 1872. Hence. disposal and receiving of stolen property. (b) where the amount or value of the subject matter of a suit. claim or dispute does not exceed Rs 1. the Bonded Labour System (Abolition) Act. and insult with intent to provoke a breach of the peace are some of the offences that can be decided by these courts. It may take cognisance of an offence on a complaint or on a police report and shall try all offences specified 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 notified by the state government. imprisonment for life or imprisonment for a term exceeding two years are also included within the scope of its jurisdiction. 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. Gram nyayalayas have both civil and criminal jurisdiction much like ordinary lower courts. (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. However. intuitive kadi justice for the poor”. 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. 1976. theft. For civil matters the appeal should be directed to district court which must decide it within six months. 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. includes most property disputes and claims arising from Payment of Wages Act. The Act is broadly based on the recommendations of the Law Commission of India. This leads up to the legally unjustifiable. 1948. These are social welfare legislations which require careful and sophisticated adjudication. Similarly. 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. 1936 and Minimum Wages Act. 1976 and the Protection of Women from Domestic Violence Act. (ii) circumscribed right of appeal: The most problematic part of the Act – Part VII deals with appeals. They note that the informalism of the lok adalat with its emphasis on compromise and speedy disposal could disadvantage weaker parties. which had in its 114th report suggested the establishment of such courts in order to “provide speedy. thus functioning as a mobile court. Schedule II vol xlv no 43 The gram nyayalayas capture all the weaknesses of the nyaya panchayats and lok adalats. the Equal Remuneration Act.000. respectively. That this Act does not incorporate proper procedures is even more troubling. where the amount or value of the subject matter of such suit. Subsection (1) provides that notwithstanding anything contained in the CrPC or any other law.000. offences which are not punishable with death. lok adalat judges appeared to be “overbearing and coercive” to the parties before them – especially poor and un-represented parties. who shall have the qualifications of a first class judicial Economic & Political Weekly EPW october 23. the Minimum Wages Act.000. 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 fine not exceeding Rs 1. 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. 1955. the Act prevents any further appeal after the decision of the court of session or the district court. concealment. sentence or order of a gram nyayalaya except as provided hereunder. 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 specified in Part I of the Second Schedule and try all claims and disputes which may be notified by the central government and by the state government. 2005. 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. Under the statute. Vitally. claim or dispute does not exceed Rs 5. (c) except on a question of law. a party can appeal the nyayadhikari’s decision to a sessions court for criminal matters which must be decided in that forum by that judge within six months. Evidently. 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.commentary symbolic support from appeal to the virtues of the indigenous system” (ibid). the exclusion of lawyers. 1948 within the scope of civil jurisdiction of the Nyayalaya. given the nature of disputes that will come up for consideration of these courts. Section 33 (7) provides that the decision of the court of session shall be final and no appeal or revision shall lie from the decision of the court of session. and the problems associated with these forums would apply equally to this most recent version of the ostensible indigenous dispute resolution forum. These are to be established for every panchayat at the intermediate level and will be headed by a nyayadhikari. no appeal shall lie from any judgment. Within its criminal jurisdiction. Some of these include the Payment of Wages Act. According to the authors. and the shift of decisional standards from ‘legal principles’ to ‘principles of justice’ suggest a major enlargement of the presiding judge’s discretion and robust faith that the poor have more to gain from benign paternalism than from juristic or popular legality (ibid). Section 33 provides for appeals in criminal cases. 2010 17 . the Protection of Civil Rights Act.
wherein every police officer functioning within the local limits of jurisdiction of such a court shall be bound to assist in the exercise of its lawful authority. provides that a gram nyayalaya may receive as evidence any report. As per Section 33 (4). In spite of these recommendations. Therefore. which governs the adjudication of criminal disputes in the court system. This provision employs non-binding language and is conditional while dealing with an issue of prime importance. there are bound to be similar difficulties with the explicit inclusion of a provision warranting police assistance in the Act. Unfortunately. This is similar to Section 34 (3) which lays down the same restrictions for civil cases. be consistent with the interests of justice. (iii) Summary Procedure and Plea Bargaining: Gram nyayalayas shall follow summary trial procedure in criminal cases. where police representatives act as interpreters and arbitrators of the law (ibid). The Law Commission of India in its 142nd report had recommended a “competent authority”. 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. there are also concerns regarding the time limit imposed on filing an appeal against the decision of the gram nyayalaya. Conclusions The government should appreciate that the aim of adjudication is not merely peace. in fact appear and advocate for the electricity companies. assist it to deal effectually with a dispute. every appeal shall be preferred within a period of 30 days from the date of judgment. it is dangerous to allow the police to offer “assistance” which may lead to coercion of the litigants. for almost all matters that will be decided by the gram nyayalayas. Further. Therefore. 2010 may. sentence or order of a gram nyayalaya in a criminal case. 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 accused would file an application for a plea bargain to the “plea” judge. Further. Any proceeding in a court of law must be consistent with the interests of justice in all circumstances. there can be only one additional appeal to subordinate courts. 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). Given the similarity in the setting of lok adalats and gram nyayalayas. document. Within the part of the Act. they note. in its opinion.commentary court shall be final and no appeal or revision shall lie from such decision. the gram nyayalaya has the power of a civil court. if such an application is rejected. This runs contra to the CrPC that normally governs all criminal trials in the formal court system. (v) civil court sans civil Procedure: In terms of civil suits. In a system which compromises on issues of due process and prevents the usual number of appeals. 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). The police. 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. The application for plea-bargaining is to be filed with the court itself. However. Section 20 provides that any person accused of an offence may file 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. (iv) ‘Interests of Justice’: While the scheme of the Act which details the special procedure in civil disputes is not entirely undesirable. however. The proceedings shall be in one of the official languages of the state other than English. 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. plea-bargaining has been introduced in the CrPC. 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. a metropolitan judge or magistrate of the first class or two retired high court judges (depending on the gravity of the offence) would be appointed as plea judges. it is worthwhile to appreciate that Section 24 (7) provides that the proceedings shall. statement. 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 Eckert’s description of the Shiv Sena courts in Maharashtra. it binds the police officer or any other government servant to provide assistance when so directed by these courts. this would in turn have an undue bearing when the trial is conducted. the Gram Nyayalayas Act does not provide for such a competent authority. This is another example of the Act compromising on proper procedure and is bound to create difficulties for parties involved in litigation at the level of gram nyayalayas. (vi) Police assistance: The Act also seeks to provide for assistance of police to the gram nyayalayas. Galanter and Krishnan document the manner in which police assistance has affected the functioning of the Electricity Lok Adalats (Galanter and Krishnan 2004: 812). “as far as practicable”. Section 30 of the Act dealing with the application of the Indian Evidence Act. information or matter that october 23. 1872. The revised version of the bill that was finally enacted also contains a proviso which allows for availing of judicial remedies available under Articles 32 and 226 of the Constitution. and the judgment passed by it shall be executed as if it were a decree of a civil court. this provision allows for non-compliance when it is not “practicable”. the Act continues to set a bar on the time period which is less than the time prescribed in the procedural laws. The parties may argue their own case but they also reserve the right to engage a lawyer to represent them. as far as practicable. or the maximisation of the ends of vol xlv no 43 EPW Economic & Political Weekly 18 .
The state government has appointed three committees to suggest reforms in higher education. Public Grievances. occupy important posts in universities. 22nd Report on the Gram Nyayalayas Bill. Hastings Law Journal 55:789. Galanter. While two of these have been given the task of looking at the existing Maharashtra Universities (MU) Act. with three committees there is the risk of contradictory recommendations. the committees’ recommendations will be examined by another committee chaired by the education minister. with limited procedural guarantees.php? departmentCode=2402) of reforms. rather than academics or academic administrators.maharashtra. It is to give force to constitutional values and ensure that such values infuse the content of the true aim of adjudication – justice. It has been asked to suggest ways and means to improve the standard and quality of higher education. References Department Related Parliamentary Standing Committee: Committee on Personnel. has decided to get its house in order by looking at reforming the public universities. has interesting pointers. Tewari. On the other hand.com) is with the Tata Institute of Social Sciences. some of which achieved the desired outcomes (Kumar 2009). recommending new legislative enactments. Sulabh and Tanya Agarwal (2006): Wanna Make a Deal? The Introduction of Plea Bargaining in India. Marc and Jayanth K Krishnan (2004): “Bread for the Poor”: Access to Justice and the Rights of the Needy in India”. S C Jamir. There is need for a new legislative enactment and a diversified institutional design for universities – a challenge these three committees will have to address. It is quite intriguing because the same political class that governs a large number of educational institutions in the state (in fact. 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. which draws heavily from the Maharashtra government’s statistics. Implementation of the Maharashtra Universities Act B Venkatesh Kumar An evaluation of the implementation of the Maharashtra Universities Act. 2007. A statute that is created only for people residing in rural areas. both essential for (re)drafting of the Act. The Gram Nyayalayas Act violates this essential foundation of adjudication. Not only is there a need for a new legislative enactment. and bifurcation of universities. Such deinstitutionalisation in turn has resulted in a severe crisis of governance. Second. were aimed at improving the governance of universities in the state. First. These reforms. Maharashtra’s GER is 13% in higher and technical education. 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. Fiss. Law and Justice. There are other issues which they are mandated to look at within a holistic framework (http://techedu. 2010 19 . Civil Rights. It is interesting because Maharashtra with its long tradition vol xlv no 43 october 23.commentary private parties (Fiss 1984: 1073). resources and the quantum of private gain will not determine the aims or means of the process that is adjudication. 1994. gov. Yale Law Journal 93:1073. there is no representation from the social sciences and the legal field. to adjudicate allegedly small claims – including those that implicate a litany of social welfare legislation concerning – Minimum Wages.in/english/dcmNew/index_UC. Economic & Political Weekly EPW The state government’s decision to overhaul the higher education system is both interesting and intriguing. these committees also face the challenging task of recommending changes that will lead to academic freedom and accountability in the state’s universities. Current Status An independent study for the Planning Commission (Pethe et al 2009) for the midterm review of the Eleventh Plan. of political elites setting up educational institutions for “public good”. R ecently. the Government of Maharashtra announced the formation of three committees to suggest measures for reform of higher education. Owen M (1984): Against Settlement. Abolishing Bonded Labour. United States. initiated in 2009. Mumbai and currently a Hubert Humphrey Fellow at Penn State University. while the GER for vocational education is Interesting and Intriguing B Venkatesh Kumar (venk71@gmail. This article examines the current state of higher education in Maharashtra and the implementation of the MU Act of 1994. 1994 shows that individuals who excel in electoral arithmetic. the third committee has been given a much broader mandate. It also looks at issues of external and internal constraints which have led to the deinstitutionalisation of many universities.1%. Supreme Court Cases (Cri) (Jour) 2:12. This raises several concerns. Equal Pay and Protection from Domestic Violence compromises the promises of our Constitution. While the Gross Enrolment Ratio (GER) for India is about 13. Third. It makes a mockery of that which is most sacred to all law – that power.
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