Tuesday, November 23, 2010

The Gram Nyayalaya: The New Face of the Judiciary

Guest Post by Vasudha Nagaraj

The Gram Nyayalaya: The New Face of the Judiciary

The Gram Nyayalayas Act passed in January 2009 proposes to set up a Magistrate’s court at the Mandal level. In a press release issued on the occasion of Gandhi Jayanti (2nd October, 2009), the Centre announced that there shall be 5000 new courts instituted across the country, that it shall spend approximately 1400 crores for this purpose. The same press release added that the setting up of the Gram Nyayalaya is part of drawing a larger road map for judicial reforms. These new courts, it has been explained, is one of the measures to reduce the backlog and pendency in the subordinate courts by 50%. Any discussion of law reform either by the Chief Justice or the Law Minister have touched upon the setting up of these courts primarily in terms of its impact on reduction of pendency of cases in the subordinate courts.

The Gram Nyayalaya is the latest in the reforms in the structure of the Indian judiciary. The state introduced Fast track Courts and Lok Adalats to address the monumental backlog of cases in the judiciary. Family Courts instituted since 1984 also espouses speedy disposal, sensitive approach and relaxation of strict rules of evidence and procedure. The Gram Nyayalaya seems to be a combination of the objectives of several special courts in contrast to the regular emphasis on the adversarial trial.

A Round Table was organised in Hyderabad on 19 September, 2009 with several lawyers practicing in the District Courts to discuss the scope and possibilities of these new courts. The following is a report of the main issues that came up in the discussion.

The Gram Nyayalaya as a different court was proposed by the 114th Law Commission (lawcommissionofindia.nic.in) way back in 1986. The report recommended the concept of the Gram Nyayalaya with two objectives. While addressing the pendency in the subordinate courts was the major objective, the other objective was the introduction of a participatory forum of justice. To make it participatory the Law Commission recommended that the Magistrate be accompanied by two lay persons who shall act as Judges, that the legal training of the Magistrate will be complemented by the knowledge of the lay persons who would bring in the much required socio-economic dimension to adjudication. It was proposed that such a model of adjudication will be best suited for rural litigation. The Law Commission also observed that such a court would be ideally suited for the villages as the nature of disputes coming before such a court would be ‘simple, uncomplicated and easy of solution’ and that such disputes should not be enmeshed in procedural claptrap. The report suggests that such a litigation is expensive both for the state as well as the litigant. However the participatory aspect has been set aside in the current Act and we find the Gram Nyayalaya manned by the regular Judicial First Class Magistrate. Its features are:

It will be a mobile court and will conduct its proceedings in close proximity to the cause of action.

The proceedings will be carried out in the local language.

The court fees for any of the civil claims will not exceed Rs 100 irrespective of the worth of the property involved.

In criminal cases the proceedings will be of a summary nature.

In civil cases, in execution proceedings, the court will not be bound by the Code of Civil Procedure and will be guided by principles of natural justice.

The Nyayalaya may accept documents that may not be strictly admissible under the Indian Evidence Act.

All the orders (except consent orders) of the Nyayalaya can be appealed in the District Court and no further.

In criminal cases the accused can petition the court for plea bargaining.

The Magistrate presiding in this court will be called a Nyayadhikari. The Nyayadhikari, in addition to his regular adjudicative functions, has to assist, persuade and conciliate the parties in arriving at a settlement.

Issues in the Round Table

a) Is village litigation simple and amenable to fast solutions? For one foot of land people have initiated cumbersome litigations. The proximity of these courts may lead to more litigation among family members or among neighbors too. What could be resolved with the help of local and customary mechanisms may end up being trapped in these courts. In a way these courts, with its judges and conciliators, will invalidate existing mechanisms of managing disputes in the villages.

b) In regard to court fees, the new Act states that all suits irrespective of the value of property shall be registered with 100 rupees. While standardizing court fees enables access to the poorer litigant, it may also lead to excessive litigation.

c) Relaxing rules of evidence: In these new courts documents will be admitted even if they are not considered relevant by the law of evidence. How can a relaxation of this kind be used by parties to a dispute who are drawn from unequal powers and resources. A more powerful litigant may be able to play the rules of documentary evidence much more to his advantage.

d) Flexibility about procedures and evidence also depends on the Judge presiding in these courts. It is common knowledge that some judges are extremely rule bound while some are not. Discretion of the judge can also turn arbitrary. The discretionary powers of the judge has tricky implications.

e) All proceedings in criminal cases have been made into a summary one. Two important aspects of a summary trial are that charges are not framed and only the gist of evidence is recorded. What could be gained if a full recording of the evidence is given up in favor of the summary recording if not lip service to the question of speedy disposal. By making it a summary trial, one is giving more room for the judge to exercise his discretion.

f) Plea Bargaining and Conciliation: Apprehension was expressed about the provision of these two aspects in criminal and civil cases. It was pointed that cases filed by workers under the Minimum Wages Act or women under Domestic Violence Act, plea bargaining would wield lot of pressure on the victims to close the case, which may be detrimental to the interests of the victims.

g) Much discussion centred around how these courts were being instituted to regulate the large number of claims arising from the land and water tax violations. It was observed that the model of taxation is changing in the rural areas with newer taxes being introduced.

h) On a more hopeful note, some lawyers expressed that the Gram Nyayalayas would be helpful for those people living in remote Mandals of a district. They gave instances of how the rural litigant traveled long distances and even slept overnight in the court complex to attend his case the following day. They also contradicted the general opinion that such courts would invalidate the existing local mechanisms of solving disputes especially in a context where much of the local dispute redressal has been made over into the hands of the goondas, party leaders and police stations. Despite being local and customary, they pointed out, these local forums have become expensive and time consuming for the common man.

i) On the proximity of the court to the cause of action, it was felt that this give an opportunity for the litigant to mobilize her community and impact the procedures in the court. The presence of the litigant’s community in the court would provide the much required show of strength as well as enabling negotiations.

At the end of the Round Table there was not much consensus about how these new courts would function. There was suspicion that these courts are being set-up with ulterior motives of ‘managing litigation’ and with the purpose of reducing the pendency of cases. A recurring question was whether speedy disposal meant speedy justice for the poorer litigant. A court that is closer to the rural litigant and a speedy disposal are definitely laudable objective of the legal system. However, an emphasis on speedy disposal alone raises doubts if these are moves are being made to manage the arrears of the cases or to enable better access to the litigant-people. Surely long pendency is not the only issue which affects a litigant’s expectations in the courts. One was also unclear about what to draw from the experiences of the other special courts such as Fast Track courts or the Lok Adalats. Clearly, family courts, despite its emphasis on conciliation and relaxed procedures, ended up functioning like regular civil courts. Considering the disappointing practices of special courts and their functioning, the question remained, whether the Gram Nyayalaya be able to establish a new forum for litigation.

3 comments:

Arvind Singh said...

Very Happy with the concept of Gram Nyayalaya, definitely it will be helpful for poors who can't afford so much time and money.

Defendca said...

That's really a progressive move. Gram Nyayalayas will serve the people because of increasing mob in other courts. The decisions will also come out soon.
san mateo dui

Defendca said...

Ye surely Gram Nyalaya will be very helpful for people in villages
This will be a great asset for the people
san mateo dui