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.

Sunday, November 21, 2010

New Slate of Amendments

As parliament stumbles into the Winter Session, one should note that there are five constitutional amendments on its legislative agenda. The most prominent of course is the Women's Reservation Amendment (108th) which proposes to reserve 33% of seats in the Lok Sabha and state legislatures (but curiously not in the Rajya Sabha which is perhaps why they passed it). The 110th and 112th Amendments seek to increase women's reservation in village panchayats and town municipalities to 50% (some states like Bihar have already implemented it).

The 111th Amendment Bill seeks to create a new Directive Principle of State Policy and provide a mechanism for implementing the same. The proposed Art 43 B of Constitution shall ask to state to endeavor to " promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies." It recognizes that coorperative societies in India are economically important but are often not transparent and democratic. Interestingly coooperative socities come under Entry 32 of the State List, and the central legislation for the same is being justified as a demand raised during "consultations with the State Governments
have been held at several occasions and in the conferences of State Co-operative Ministers."

The amendment seeks to empower the Parliament in respect of multi-State co-operative societies and the State Legislatures in case of other co-operative societies to make appropriate law. These laws are expected to have provisions for incorporation, regulation and winding up of co-operative societies based on the principles of democratic member-control, member-economic participation and autonomous functioning. It also specifies term limits for directors, strict enforcement of meetings of the boards, independent audits, subjects cooperative societies to the right to information, requires them to submit periodic reports and accounts to the state governments and provides for reservation of SC/ST/Women on the board.


The 113th Amendment seeks to change Oriya in the list of recognized languages to Odia.

The plethora of amendments makes it pernitent to ask whether any of the above changes (perhaps with the exception of the spelling of Odia) were required to be done through constitutional amendment. Would an ordinary law that increased reservation in local bodies for women or a national legislation regulating cooperatives withstand constitutional scrutiny?

Wednesday, November 17, 2010

Seminar: Special Issue, 60 yrs of the Constitution

The current issue of Seminar, available here, is devoted to celebrating sixty years of the Indian Constitution. Contributors include Pratap Bhanu Mehta, Uday S. Mehta, Upendra Baxi, Sudhir Krishnaswamy, among others. Several members of this blog - Vinay Sitapati, Rohit De, Vikram Raghavan, and myself - have also contributed to the issue. I hope to provide more detailed reflections on some of the contributions soon.

Monday, November 15, 2010

Why POSCO is important?

A few weeks ago, Nick posed a question on this blog as to what is the most pressing legal issue today. He stated that in his experience, Indians view the state’s obligation to lift them out of poverty as “the core promise of the state”. Given that promise, Nick argued that today,

“the biggest legal challenge in India today is not Ayodhya, or the constitutionality of reservations, or POSCO, or NAZ; even though these are all critical to how India's future will be shaped and in some cases threaten to potentially tear the country apart. The largest challenge is to close the gap between what the law says and what is implemented."

The rest of Nick’s post focused on improving implementation mechanisms and exploring administrative law mechanisms to ensure greater implementation of laws in Indian society. I wholeheartedly endorse Nick’s argument about the necessity to eliminate corruption, understood in its simplest form as the sort of sordid saga that has been playing out in the Telecom ministry and the Congress government of late, which has permeated through the length and breadth of the Indian polity. But certainly when we speak about the gap between law and implementation, we cannot assume the neutrality of “law”. Some laws should be implemented; others like the erstwhile S.377 criminalisation of sodomy or restrictions on adoption of children by married women should not.

More importantly however, I would like to argue that POSCO and other projects that involve issues of displacement and deprivation are fundamental challenges for the Indian polity. Without denying the importance of either the Ayodhya issue or the Naz judgment (particularly for minority groups like Muslims and homosexuals respectively), I submit that the issues relating to POSCO (and other projects like Vedanta in Orissa, the Adani Port and Special Economic Zone in Gujarat, and Jindal Steel and Power Plant in Chhatisgarh) are crucial to a vast majority of the Indian population. Not only are these issues significant for the poverty upliftment of 37.2% of India’s population or 400 million people that live below the poverty line, they are crucial also for the challenge to India’s democracy by the increasingly violent Naxalite struggle in India. The Naxalite movement involves a complex set of issues including lack of development, exacerbation of inequalities and distrust in state power bred by arbitrariness and corruption. At its heart however, the movement is about struggle over land and resources and related issues of displacement and deprivation. Today, 40% of India’s geographical area is engulfed by the Naxalite struggle, up from 33% a few years ago.

Each of the abovementioned projects, i.e. POSCO, Vedanta, Adani port (and there are thousands of others) involve displacement of masses of people, many of whom are completely dependent on common property resources, including the forests, grazing land and the seas. Many of the displaced peoples are tribals (like the Dongri kondhs in the Niyamgiri hills in Orissa), or minority groups (like Muslim fishermen with a 14% literacy rate in Gujarat). In each case, people are being displaced from land that for a long time (ranging from half a century to several centuries) has been used by them to support their way of life. In fact, so long have these people lived on this land that they should have recognized customary and easementary rights over it. In reality, however, the government of India fails to recognize even their existence on this land let alone any legal claims they might have to the same. In each of these cases, displacement means destruction of a way of life and the only means of livelihood available to the group because of the government’s failure to provide them with education or any other marketable skills that would enable them to adapt to a changing economic environment. The result is sheer and abject poverty of the kind that these people have not known so far despite their humble conditions. In each of these cases, the projects impose large scale environmental degradation, including cutting down of forests, uncontrolled mining operations, reclamation of the seas and extinction of animal and marine life.

People interested in poverty alleviation, ostensibly the NAC (although the extremely watered down version of the Food Security Act and the failure to ensure a universal PDS clearly belie that impression) need to pay attention to the simultaneous processes of immiseration that the UPA government has sanctified and presided on over the past 7 years. Mr. Jairam Ramesh’s efforts to give some teeth to the environmental laws in this country are highly laudable in this regard (given that the Ministry of Environment and Forests has rubberstamped every sort of project in the past in the most non transparent and corrupt matter without regard for the human or environmental consequences of the same) but he faces opposition from half a dozen ministers in his own cabinet and a neoliberal elite who think of development only in terms of growth rates and GDP. Consequently, his achievements will likely be limited. What is shocking however is the failure of print media to sufficiently highlight these contradictions in India’s development story and that of scholars and intellectuals to engage with these issues in a comprehensive and sustained manner. POSCO and Vedanta need to be understood not merely as involving problems of violation of environmental laws and corruption issues. They have to be understood fundamentally as posing serious ethical questions about the problems of redistribution and resource allocation in Indian society. There are ample lessons from history on how to better manage these fundamental tensions and contradictions within the process of economic development, mostly on what not to do. But to take advantage of these lessons, we first need to be mindful of the nature and magnitude of the problems we are facing.

Friday, November 12, 2010

Legal Practitioners Bill

The Law Ministry has invited suggestions on the draft Legal Practitioners (Regulation and Maintenance of Standards in Profession, Protecting the Interests of Clients and Promoting the Rule of Law) Bill 2010 (thanks to the reader who pointed it out to me). Some provisions are highlighted below, with preliminary comments.

Professional Principles
Clause 2(f) defines “Professional Principles” to include:
(i) that the Legal Professionals should act with independence and integrity;
(ii) that the Legal Professionals should maintain proper standards of work;
(iii) that the Legal Professionals should act in the best interest of their clients;
(iv) that the Legal Professionals who are authorised to appear before a court or tribunal, by virtue of being such authorisation should comply with their duty to the court / tribunal to act with independence in the interest of justice;
(v) that the affairs of clients should be kept confidential.


What appears to be missing is an explicit mention of the lawyer's responsibility to be present at a scheduled court hearings.

Regulatory Objectives:

The Bill defines its regulatory objectives thus:
(a)protecting and promoting the public interest;
(b)supporting the constitutional principle of the rule of law;
(c)improving access to justice;
(d)protecting and promoting the interests of the clients of the legal practitioners;
(e)promoting healthy competition amongst the legal practitioners for improving the quality of service;
(f)encouraging an independent, strong, diverse and effective legal profession with ethical obligations and with a strong sense of duty towards the courts and tribunals where they appear;
(g)creating legal awareness amongst the general public and to make the consumers of the legal profession well informed of their legal rights and duties;
(h)promoting and maintaining adherence to the professional principles.


Regulator

The Bill proposes to establish a Legal Services Board with broad powers to issue guidelines and regulations in pursuance of its regulatory objectives (clause 12). In addition, it is to assist the Bar Council in the maintenance and development of professional and educational standards (clause 13, see also clause 35). [Does legal education need yet another regulator though?] Clauses 29-34 deal with the relationship between the Board and the Bar Council. The Board is supposed to take the advice of a Consumer Panel into account (clauses 18, 19). The Bill also envisages an Ombudsman to receive complaints against lawyers directly.

Legal Aid

The Bill imposes a duty on every legal practitioner to provide free legal services to certain classes to consumers (clause 27).

Conditions of Service for Interns and Juniors?
One important omission in the Bill seems to be the regulation of the often exploitative relationship between a senior and a junior lawyer. (Readers may be interested in the Report on “Entry Barriers to Litigation” based on a survey and a series of interviews held in 2009 and 2010 by Research Foundation for Governance in India (RFGI). A blog post on the Report can be found here.)

Bar Exams?
Would this Bill have been an appropriate vehicle to give a statutory footing to bar exams? Or, does this matter properly belong to the Advocates Act? The legal profession should brace itself for similar disputes concerning the respective jurisdiction of the Bar Council and the proposed Board, despite the Bill's attempts to clarify the matter.

Thursday, November 11, 2010

Corruption: Political and Civil Liability

Chavan and Kalmadi have paid the political price for corruption, and Raja may soon follow. Of course, political sanction does not require proof of guilt in a court of law and can therefore be (relatively) swift. Are we seeing the development of a political convention that serious allegations of corruption requires a public servant to resign? If so, does the convention apply only to elected officers or also to unelected bureaucrats and army officers? Is resignation necessary only from a state office or also from offices held in a political party? Should the person herself be accused of corruption, or tolerating/covering corruption of other people should also lead to resignation? Does anyone know of a good research article which throws light on how Indian politics has historically dealt with serious allegations of corruption (allegations involving Rajeev Gandhi, Narasimha Rao, LK Advani, Jayalalitha, George Fernandes, Lalu Yadav, Bangaru Laxman, Reddy brothers come to mind)? I am not so much interested in the moral question of whether those accused of corruption should resign as in whether we have a political convention that requires them to resign or be sacked (although, admittedly, they are connected).

Of course, few would be satisfied if the only price a corrupt person had to pay was political. Apart from the criminal liability under the Prevention of Corruption Act, the corrupt also have a personal civil liability under the tort of misfeasance in public office. In the Three Rivers District Council case, Lord Steyn laid down the ingredients of the tort in British law:
1. The defendant must be a public officer
2. The power was exercised as a public officer
3. The act was motivated by bad faith or malice (mere negligence is not enough, one must show abuse of power)
4. Other ingredients that require proof of damage caused to the plaintiff.

Anil Divan gives a good account of the acceptance and development of this British tort by the Indian Supreme Court in his contribution in Kirpal ed, Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (2000). It appears that the tort was subsumed within the public interest litigation system, and the final requirement of personal damage to the plaintiff was not insisted upon by the Supreme Court. Does anyone know of the development of this tort in India since the article was written? Given that the standard of proof in civil cases is lower than criminal cases, that there is no impunity provision protecting the public servant, that the liability is personal and exemplary damages can be sought, a case of misfeasance in public office may be worth exploring.

Wednesday, November 10, 2010

NUJS Conference on Constitutional Pluralism

NUJS is collaborating with Eurasia-Pacific Uninet and other partners is organizing an International Conference on "Constitutional Pluralism: New Challenges for Constitutional Theory" on 11th and 12th November, 2010 in Kolkata, India.

This Conference is the third in a series of Asian-European Dialogue on Comparative Constitutional Law that has been organized by Eurasia-Pacific Uninet, a network of more than 130 member institutions in Europe and Asia.
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This Conference shall also be the first in a string of programmes in the University to celebrate the Birth Centenary Year of Dr. Durga Das Basu.

For those interested, more details available at the NUJS website (please check the right hand side of home page for conference announcements).

Wednesday, November 03, 2010

Sources of Law

I wanted to bring to the attention of our readers, two fascinating online sources on Indian law.

The first is a colonial legal history database that has been set up Mitra Sharafi, Assistant Professor at the University of Wisconsin Law School at Madison. Much of this database has been created by digitizing colonial law reports and archival records. For me the most fascinating resources include; a digitized index of articles published in a number of colonial journals (get the commentary on the Civil Procedure Code before it was enacted), a complete listing of South Asian who studied for the bar at the Inns of Court, and a catalouge of books owned by Wadia Ghandy in 1911 (which gives a great glimpse of what a colonial legal practice would look like).

The second is a more contemporary resource called mylaw.net that has been set up by the team from Rainmaker. Mylaw describes itself "the world's first contextual network for lawyers, and it will feature information (stories and analyses about the legal industry), opportunities (through a jobs and internships platform) and educational programmes for lawyers." Unlike the regular legal website which feature a mix of gossip and law updates, this provides space for regular opinion column of legal issues. Some recent ones include, Kalyani Ramnath's analysis of the Ayodhya judgment and Anubhav Sinha's commentary on how the Bombay High Court has extended admirality to jurisdiction to all High Courts in India. I will also be writing a regular feature on the legal careers of colonial lawyers. The first on Jinnah is already available here (part 1, part 2).

Perhaps their most valuable section consists of detailed interviewswith prominent Indian lawyers on their careers. These include MP Singh, NR Madhava Menon, Iqbal Chagla, Harish Salve and Ashok Desai. Given the practice oriented nature of Indian law, and the absence of any concerted attempt to create a database of oral history, this has the potential of acting as a digital archive of sorts. They also carry more focussed interviews with legal academics, the most recent being with NUS professor and LAOT contributer V.Umakanth on SEBI Regulations.