Gram Nyayalaya

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Law Commission Report

Gram Nyayalaya

LAW COMMISSION OF INDIA

ONE HUNDRED AND FOURTEENTH
REPORT

ON
GRAM NYAYALAYA

AUGUST 1986

Shri Ashok Kumar Sen,
Minister for Law and Justice,
Government of India,

Shastri Bhavan,

NEW DELHI.
August 12, 1986

Dear Minister for Law and Justice,

I feel happy to forward the first report of the present Law Commission (One
Hundred and Fourteenth Report of the Law Commission) on the topic of 'Alter-
native Forum for Resolution of Disputes at Grass-roots Level'.

The present Law Commission was set up effective from September 1, 1985.
Having regard to its terms of reference, it was resolved by the then members of the
Law Commission to give top priority to the question of tackling the mounting arrears
in courts. It was a two-pronged drive. One was to introduce a participatory
forum of justice within the mandate of the Constitution of India. Another was
to examine its impact on the question of backlog and ever increasing arrears in
courts.

Browsing through the report, you would be able to ﬁnd that a comprehensive
working paper wasiissued and a national debate was developed. In the meantime
by your letter dated February 17, 1986, you conveyed to the Law Commission the
decision of the Government to entrust the work of recommending judicial reforms
to the present Law Commission. Comprehensive terms of reference drawn up for
the proposed Judicial Reforms Commission was annexed to your letter. The ﬁrst
term of reference in the matter of recommending judicial reforms was to some extent
overlapping with the ﬁrst term of reference of the Law Commission. Therefore,
the Commission continued its enquiry, dialogue and deliberation with regard to the
working paper issued by it. I have, therefore, great pleasure now in forwarding
the report.

There is undoubtedly some delay in preparing and submitting the same. The
Law Commission had a tentative working schedule and it was hoped to submit the
report by the end of June or latest by the middle of July, 1986. However, as you
are aware that I was designated as High Legal/Judicial Authority for identifying
and specifying certain areas pursuant to para 7.2 of the Punjab Accord. It was a
time-bound programme. Consequently, the schedule of the Law Commission got
disturbed by more than a month. This could have been avoided if the Commission

had full quota of prescribed membership. Save with the presence of Member

Secretary, I am the lone full-time Member. Hence this delay.

I hope that the report will be expeditiously placed before the Parliament and
printed and circulated so that effective and expeditious steps can be taken for its
implementation.

With regards.

Yours faithfully
Sd/-
D.A. DESAI
Encl : A Report '

CHAPTER I
CHAPTER II

CHAPTER III
CHAPTER IV
CHAPTER V

CHAPTER VI

CHAPTER VII
Appendix I
Appendix II

Appendix III

86-MIP(N)441MorLJ&cA---1(a)

CONTENTS

Constitution and terms of reference of Law Com-
mission of India . . . . . .

'1_' he overall approach of the Eleventh Law Commis-
sion . . . . . . . .

Approach disclosed in the Working Paper . .
General features of response on the Working Paper

Examination and Analysis of Critical Discussion on
certain draft proposals . . . . 1

Critical examination on the question of jurisdiction,
powers, etc. . . . . . .

Conclusion . . . . . . .
Working Paper . . . . . . .
List of Workshops with places, dates and the partici-
pants at the Workshops . . . . .
State Governments, High Courts, Associations or
other bodies and individual responses . . .
(i-ii)

PAGE

25
42
43

CHAPTERVI
CONSTITUTION AND TERMS or REFERENCE or LAW COMMISSION

OF INDIA
l .1. The Eleventh Law Commission was constituted on September 1, 1985 with Terms f0f filer'
the following terms of reference 2 'E':)°I';'1m'i'sSi0n_ aw

I. To keep under review the system of judicial administration to ensure
that it is responsive to the reasonable demands of the times and in
particular to secure-

(a) elimination of delays, speedy clearance of arrears andreduction in
costs so as to secure quick and economical disposal of cases without affecting
the cardinal principle that decisions should be just and fair;

(b) 'simpliﬁcation of procedure to reduce and eliminate technicalities
and devices for delay so that it operates not as an end in itself but as a means
of achieving justice;

(c) iniprovcinent of standards of all concerned with the administration
of justice.
2. To examine the existing laws in the light of Directive Principles of State
Policy and to suggest ways of improvement and reform and also to
suggest such legislation as might be necessary to implement the Directive

Principles and to attain the objectives set out in the Preamble to the
Constitution.

3. To revise the Central Acts of general importance so as to simplify them
and to remove anomalies, ambiguities and inequities.

4. To recommend to the Government measures for bringing the statute

book up-to-date by repealing obsolete laws and enactments or parts
thereof which have outlived t eir utility.

5. To consider and to convey to the Government its views on any other

subject relating to law and judicial administration that may be referred
to it.

1.2. Subsequently on February 17, 1986, the work to be assigned to the pro- Terms of refer-
posed Judicial Reforms Commission was entrusted to the Law Commission. The °ﬂ°e °f -7"*"°la1
terms of reference relevant to judicial reforms on which the Law Commission was Re-f°-ms C°m'
invited to work are as under : _ m'°5'°"'

1. The need for decentralisation of the system of administration of
justice by----
(i) establishing, extending and strengthening in rural areas the insti-
tution of Nyaya Panchayats or other mechanisms for resolving disputes;

(ii) setting up of a system of paticipatory justice with deﬁned juris-

diction and powers in suitable areas and centres;
(iii) establishing other tiers or systems within the judicial hierarchy to
reduce the volume of work in the Supreme Court and the High Courts.

2. The matters for which Tribunals (excluding services Tribunals) as envi-
saged in Part )_(IV-A of the Constitution need to be established expedi-
tiously and various aspects related to their establishment and working.

3. The procedural laws with a view generally to disposing of cases expedi-
tiously, eliminating unnecessary liti ation and delays in hearingof cases
and reform in procedures and procedural laws and particularly to devising
procedures appropriate to the terms envisaged in items 1 (i) and l(ii).

4. The method of appointment to subordinate courts/subordinate judiciary.
The training of judicial omcers.

The role of the legal profession in strengthening the system of adminjs.
tration of justice.

Constitution and
Composition of

Law Commission.

Reform in _Judi-
cial Adininistra-
tion.

Circulation of
working paper.

7. The desirability of formulation of the norms which the Government and
the public sector undertakings should follow in the settlement of disputes
including a review of the present system for conduct of litigation on
behalf of the Government and such undertakings.

8. ' The cost of litigation with a view to lessening the burden on the litigants.

9. Formation of an All India Judicial Service; and

10. Such other matters as the Commission considers proper or necessary for

the purposes aforesaid or as may be referred to it from time to time by
the Government.

1 .3. The notiﬁcation constituting the present Law Commission for a period of
three years from September l, 1985 to August 31, 1988 provided that the Eleventh
Law Commission shall consist of : (if) Chairman (ii) Three full-time Members
(iii) Member-Secretary (iv) Special Secretary Legislative Department, ex-officio
Member and (v)';Three:or{more part-time specialised Members depending on the
nature of the topic referred to the Commission for study. By the notification dated
September 2, 1985, over_and above the Chairman, Justice >K.N. Goyal of the Allaha-
bad High Court was appointed as a full-time Member. The Member-Secretary
and Special Secretary were notified. They belong to permanent service in the Minis-
try of Law. Later on Mr. Justice K.N. Goyal ceased to be a full-time Member and
has become a part-time Member. he post of Special Secretary is abolished. There-
fore, the Commission today consists of Chairman and Member Secretary, an
oﬁicer belonging to Indian Legal Service and a part-time-Member.

1.4. Having regard to its ﬁrst term of reference, namely, 'to keep under review
the system of judicial 'administration to ensure that it is responsive to the reasonable
demands of the times', the Commission decided to give highest priority to the question
of basic reforms in judicial administration. The present disturbing situation clearly
visible to all in the administration of justice will require consideration of numerous
structural changes. The Commission identiﬁed the rural poor as the victims of the
present judicial system and accordingly, -drew-up its agenda of work in which the
rural poor were assigned the highest priority. The Commission had before it the

well researched analysis of the work of the ﬁrst ten Law Commissions made by -

Dr. Upendra Baxi in his book 'The Crisis of the Indian Legal System'! The ana-
lysis shed light on the working procedure then in vogue and the need to recast the
same on the lines suggested in the analysis. It was felt that law reform is not the
preserve of a fewztechiiocrats working in the oﬂice of the Law Commission. It
must be a participatory process and the width and range of participation must be
cast wide so as to include those who 'suffered by the colonial legal system which has
become wholly stratiﬁed. Accordingly, the Commission was of the viewlthat it
should have consultation with the widest range of informed public opinion before
it ﬁnalised its recommendations for various changes in the system. Therefore, it
devised a procedure whereby a working paper on its terms of reference should be
prepared, translated into Hindi through the good offices of the Ofﬁcial Languages
Wing of the Legislative Department. It was also decided to_ hold numerous discus-
sions, organise seminars and workshops and invite consultations as it could reason-
ably handle on the draft paper. Invitations were speciﬁcally_extended_ to lawyers,
practising at grass-roots level, Judges belonging to subordinate ]L1d1Clal'y, legal
academics and social activists. .

1.5. The working paper of the Law Cornmission_on the 'Alternative Forum
for Resolution of Disputes at Grass-r00tS Level'.was circulated to_ various bodies
and persons to elicit their views and comments thereon. It_s English text as it was
circulated, appears in Appendix Ito this Report. The working paper was translated
in Hindi by the Oﬂicial Languages Wing and a voluntary organisation also produced
its translation in T amil. A copy -of the working paper prepared by the Commission
was sent to the Chief Justice and Judges of the Supreme Court, Chief Justices and
Judges of the High Courts, Chairman of 'the Bar Council of each State and Bar
Council of India and leading advocates, editors of the leading daily newspapers etc.
Inmaiiy, the last date for the receipt of views and comments was kept on December
1, 1985 but on public demand, it was extended upto March 31, 1986. .

.'(1982) ch. 9. PP- 244 to 294-

l .6. The Commission launched a nation-wide debate on the subject by meeting Nationwide
a well attended Press Conference on December 27, 1985 with a request that a wide deb"-
coverage may be given to the proposals of the Law Commission so that the message
could reach to as many people as possible. The Press responded enthusiastically
and an extensive coverage was given to the proposals of the Law Commission in
national dailies and language newspapers. A good coverage of the proposals was
transmitted through Doordarshan and Akashvani also. Keeping in view the im-
portance of the subject and for an indepth study of the matter, the Commission
held in collaboration with Law Faculties, Legal bodies, social organisations, Judges
and Advocates, academies, social activists, seven workshops at Delhi (Union terri-
tory), Salem (Tamil Nadu), Jaipur (Rajasthan), Varanasi (Uttar Pradesh), Ranchi
(Bihar), Calcutta (West Bengal), and Indore (Madhya Pradesh). With a View to
establishing a rapport with the people in remote villages, we paid visits to villages,
one to a tribal village inhabited by members of Munda tribe and another to a village
near Varanasi where Panchayat members and other elders of eight nearby villages
assembled. Persons from all walks of life were invited to participate in the work-
shops. Response to the Commission's proposal has been varied and extensive.

A truly national debate developed.

Public impression

CHAPTER II
THE OVERALL APPROACH OF THE ELEVENTH LAW COMMISSION

2.1. There exists a dominant public impression that the Law Commission's re-

0nimp,ememaﬁ0n_ports are usually not implemented. From time to time, the national dailies have

Real position.

Status position.

General aﬁproach
to Law eform.

Approach of the
Present Law
Commission.

carried, over thejlast decade or so,§features entitled "Reports That Never Get Oﬂ"
Paper" or "Law Commission's Reports Gather Dust". That such an image should
persist is a sad reﬂection on the image and status of law reform in India. Compared
with this, the Law Commissions in other Commonwealth countries, for example,
enjoy a unique public standing and enviable attention from the government.

2.2. The Eleventh Law Commission is aware that this public image is, as all
images, not based wholly on facts. . As the analysis offered by Dr.
reveals that of the first ﬁfty-nine reports of the Indian Law Commission, at least
twenty were legislatively implemented and four were partially implemented. On
the other hand, Dr. Baxi has also been able to highlight the fact that while six re-
ports were ﬁled or rejected, as many as eighteen were yet awaiting implementation,
eleven were still awaiting publication}

2.3. Dr. Baxi has pointed out the many "puzzles" in arriving at any quantita-
tive or qualitative understanding of the implementation process. But we accept
the legitimacy of the criticism levelled by him that it is "not possible . . . . . . . .to lay
all the blame on the Government for the 'state of implementation' of the Law Commis-
sion of India reports"? We agree that the Law Commission's own "lack of con-
cern for its effectiveness may have been a major factor for the present state of affair."3
The Eleventh Law Commission has, accordingly, decided to prepare an authoritative
status paper on the process of implementation of the Commission's reports thus far.

2.4. Dr. Baxi has also drawn compelling attention to the fact that the successive
Commissons have failed to formulate a general approach to the task of law revis?on
and refrorn. Surely, a national law reform body must have a policy perspective
on the nature and state of law revision and reform in India. The Commission
intends, as a part of its work, to propose for national debate the entire question
of perspectives, methods, processes and goals of law reform in a traumatically chan-
geful contemporary Indian society. The Commission may even venture to express
the hope that its formulations in this regard may eventually pave the way for a
national statement, by way of Parliamentary resolution, on law reform and law
revision policy.

2.5. As the next Chapter illustrates in detail, the Eleventh Law Commission
has already taken into account, rather fully, the constructive advice on law reform
processes and tasks offered by Dr. Baxi. But in this chapter we consider it necessary
to broadly outline the approach that the Eleventh Law Commission proposes,
generally, to adopt.

First, this Commission feels it necessary to state that law reform and revision
to be fully informed by the constitutional perspectives emanating from the Preamble,
Fundamemtal Rights and Duties, and the Directive Principles of State Policy enshri-
ned in the Constitution of India. Article 39-A provides a succinct charter of law
refroms for India. Our prexent Report identiﬁes how this article can provide fresh
points of departure, and of arrival, in the process of conceiving law reforms and,
hopefully, in the process of the implementation of law reform proposals by the
Government.

Second, the Commission believes that legal order is an inestimable resource
for national development, the unity and mtergrity of the Nation, and for the pur-
suit of the lofty ideals enunciated by the Preamble of the Constituation of India.

1See U. Baxi, The Crisis of the Indian Legal System (1982) pp. 276-285.
21:1. at 284. _
"See U. Bax'r, The Crisis of the Indian Legal System (1982) pp. 284.

Upendra Baxi '

Cynicisin concerning the nature and future of law and the capabilities of the law,
its processes and instituations in protecting and promoting these values is we think,
constitutionally forbidden. Every act of purposeful law reform must be regarded
as an act of investment in the regime of constitutional democracy.

Third, the preambulatory recital of a "socialist, secular, democratic, republican"
lndia created by the Constitution, necessarily implies that law reform must be a
participatory affair. All affected interests must be adequately consulted. Law reform,
as Dr. Baxi has reminded us, must not be conceived merely as a sectoral affairinvol-
ving merely the reform of the lawyer's law.1 Laws affect people and it is people
whom we must consult in the law reform process. And people include more cate-
gories than lawyers, judges and administrators, indispensable and valuable though
their participation is, the consumers of law, its beneticiaries, as well as the victims
of the administration of lans and justice must have a voice, a say in the process
ofthe formulations ofthe law reform proposals. In one word, such proposals
must be formulated withthe widest possible participation. Law reform must be
a truly participatory process.

Fourth, this Commission believes that simultaneously with reform of substan-
tive and procedural lav. s, its task, constitutioiially conceived, requires it to formul-
ate chages in the institutions of the law as \vcll. Normative revolutions without
corresponding institutional renovation create merely 'symbolic' reform exercises
and earn, through unfulfilled expectations, for the processes and institutions of
law reform a just measure of cynicism and contempt in course of time. This, in
turn, rubs off to the symbolism of the law itself creating exliorbitant social costs-
including disrespect for the law --which a developing nation like ours simply can-
not afford.

Fifth. and for the same reasoii, the Commission would like to urge the Govern-
ment of India, and parliament, to evolve time-bound procedures for consideration
of the Commission's reform proposals. This would include a prompt publication
and dissemination of its reports and a set of time-bound procedure for inter-
mini sterial consultations.

Sixth, as its further contribution to the elaboration ofthese procedures, the Com
mission declares its willingness to associate itself with the process of ministerial and
inter--ministeria1 considerations, communication of the Commission's points of
view, beyond the printed word, to the ministries responsiblevfor responding to
its proposals is vital to the process of law reform. This procedure should not merely
help expedition but also assist a wider dialogue within the Government for the
maturation of the law reform processes and proposals, As a related aspect, the
Commission itself will, in the processs of formulation of the proposals, seek consul-
tation with the Governments of the States and Union territories and law reform
commissions, and other related centres of decision-making across the country.

Seventh, law reform, conceived as a process of systemic change, will require
some degree of co-ordination in the future. While it is true that the Commission
can never, even when its present meagre resources are astronomically increased,
become an exclusive body for preparing law reform proposals, there is need to accord
some consultative status to the Commission when other law reform committees
are set up by various Ministries, especially when these involve structural changes
in the legal system. Such a consultative status Wlll ensure that the best advice of
the Commission is available to other law reform committees, mostly task-bound
and ad /ioc in nature. It will alsoprovide to the Commission sources of learning
and experience in diverse areas, which ultimately are related to the structural renovat-
ion of the Indian Legal System. We urge the Government to consider this suggestion
with the urgency and seriousness it so obviously 'merits. The Commission must
gracefully acknowledge the beginning made in this direction when Reports of
Justice Mulla Committee on Jail Reforms has been forwarded to it for comments,
analysis and method of implementation.

Finally, (without being exhaustive) since all changes affecting legal system
involve outlays of expenditure, it will be necessary for the Commission to always
prepare a first draft, as it were, of the magnitude of the investment needed. The
Commission, naturally, hopes to receive the fullest co-operation of the Ministry
of Finance by way of advice in this connection. By the same token, law reform
should be viewed as a dynamic component of planning. There is need for according
some consultative status to the Commission both in the Planning and the Finance
Commission.

'See U. Baxi, The crisis in} the zndianiegaz System, (1982), pp. 255-259.

Wider role for Law

Commission.

2.6. In the foregoing, we have indicated our conception of the process of
dynamic and feasible law reform. The Commission has to cease to remain an ecle-
ctic appendage of the Government if it is to perform its mission of assisting
in therestructuringoftheIndian Legal System. In order to play its full role in
the tasks of using law as a means of national development and the unity and inte-
grity of India, it must necessarily not merely initiate the process of law reform but
also coordinate the consideration of the law reform proposals. The participatory
character of law reform, as conceived by us, includes not just the crucial task of
gathering of views on law reform proposals from the people. It also includes conti-
nuing participation within the government for a fuller realisation of the potential
for law reform towards the constitutional goals and continuing reinforcement
of these goals.

CHAPTER lll
APPROACH DiS('l..OSED IN THE WORKING PAPER

3.1. Unmanageable laakleg of cases, mounting arrears and inordinate delay I,

- » _ j - , . L . - astattempts for
H1 disposal of cases in corn ts at all levels/iowest to tie h-.ghest-----coupled with reform.
exhorbitant expenses~-have attracted the attention of not only the irembers of
the Bar, consumers ofjustice (litigants), social activist. legal academics and Parlia-
ment but also the managers of the courts. The Chief Justice of India has gone on
record saying that the 'justice system as in vogue in this country is about to col-
lapse'. The disturbing situation so disclosed attracts attention of anyone concerned
with law reform. Numerous suggestions have been made by the earlier Law Com-
missions for introducing redieal reforms in the system of administration ofjustice.
The sole governing consideration till then was how to reduce the delay in disposal
of cases, make the system resilient by removing its stratification, making the system
less formal and truly inexpensive i.e. to bring it within the reach of the poor. The
]~'ourtcenth, 17it'ty--t"ourth, Seventy-scventli and Seventy--ninth amongst. other reports
of the Law Commission, recommending numerous changes keeping the system in
its basic frame-work intact were directed towards peripheral changes. The fall-out of
these changes, we observe with regret, has been further deterioration in the efficacy
of the system. The law Commission accordingly, decided to approach the matter
from a hitherto unexplored end. '

3.2. Both the law making and the judicial administration since the British days participatory
were non-participatory in character and continues to retain that featuretill today. 'Par- justice.
ticipation by broad masses of people, or even by the interests immediately affected by
it, in the process of the making and implementation of laws was virtually unknown;
unless of course, we regard protest and disobedience as forms of group participation
in law making?! The new approach must strike at the root of thisnon-partici-
patory method. While retaining the acceptable features of the present system,
the working paper focussed its attention on inter-linking it with participatory model
which may help in deprofessionalisation of the administration of justice. Parti-- j
eipation was to be invited in the process of recommending law reforms and partici-
pation may be advisedly introduced in the administration of justice. These were
the twin objectives in formulating draft proposals in the working paper. History,
it is said always sheds light on the future action to be taken and provides a feed-
back. The historical perpective was extensively examined in the Working Paper
and the inevitable conclusion that emerged therefrom was that tinkering with the
system at its fringes was forcdoomed to failure. It is self--evident that litigiousness
could not be reduced by merely tinkering with procedures of regular courts' of law.
What has become necessary is a new institutional forum stripped of technicalities
and the procedural rituals of the regular courts. The non-participatory British
model of administration of justice alienated the people from the system because
of its foreign origin, technicality, extreme formalism, rigid rules of procedure and
relevance and foreign language. It has till today remained an alien system which
has no living contact with the masses and is not meaningful to them.2 The his-
torical perspective shaped the thinking of the Commission and an attempt was
made in the draft proposals to structure administration of justice on participatory
model.

3.3. Once a tentative decision was taken to model judicial administration on Justice atGmss_
participatory basis, it had to be decided at what level it should be introduced. 1-ootslevci,
Judicial administration in this country is hierarchical in character. There is a court
variously named as Munsif/Civil Judge (Jr. Divison) at the grass-roots level. It is
subordinate to the court at the District level styled as Court of District and Sessions
Judge which in turn is subordinate to the High Court at the apex of the State Judiciary.

The Supreme Court has appellate jurisdieton over the decisons of the High Court.

g¢ &""&'_"""" ' ' V' ' ''"'_-- ' 7' "--.
'U. Ba)Ki;"Tl1g Crisis of the Indian I;egal System, (1982), pp. 4-cl-45.

'Report of the Legal Aid Committee, (Govt. of Giujara't,l§7'l), para 13.12, p. 209.
7

New Forum.

Any structure pyramidic in character must have strong foundation and, there-
fore, the draft proposals centered upon restructuring the foundation. Accordingly,
a forum for resolution of disputes emanating from rural areas and participatory in
character was received. In reaching this tentative conclusion, the Commission
took notice of the obivious fact that while the system of administration of justice
in our country is one integrated whole, it ignores or overlooks the wide social and
cultural divides between the rural population, urban population and the metro-
politan elite. This approach ignores the vital fact that the nature of disputes arising
in rural areas is wholly dissimilar from those in metropolitan areas and both required
an altogetlierdifferent model forresolution of the same. Commercial and mercantile
litigation, enforcement of corporate laws, foreign exchange regulations, mono-
polies and restrictive trade practices and complex constitutional issues ﬁgure in the
litigation in metropolitan areas. Labour disputes dominate the courts in indus-
trialised cities and towns. The disputes that arise in rural areas are largely related
to ownership and possession of agricultural land, problems of cultivation, boundary
disputes, land records, petty family and property disputes. Ignoring the stark
difference between the nature of disputes, the present system requires complex
voluminous procedural laws for the dispensation of justice at both the levels.
This realisation dictated the approach of the Commission to devise a dilferent kind
of forum for resolution of disputes at grass-roots level. The nature of the dispute
must determine the procedure and the forum for its resolution. Prior to the intro-
duction of the imperial courts' structure, socialisation on ﬁnding as well as the dis-
puted issucs, resolved with the appearance of a third party, and usually the third party
was a respectable member of the same community.

One more realisation shaped the approach of the Commission. A popular
though unwarranted belief generated and fed by the legal profession has been that
no oneiscapable of renderingof dispensing justice unless he is trained in law. To
support this unsustainable proposition it is oft-repeated that justice must be done
according to law. It is not suggested that to render justice one must violate the
law, but knowledge of law is not an essential pre--requisitefor rendering justice. 'An
interesting point that has been noticed by number of scholars in the sociology of
law is that the differentiation of legaldispute and the slight shift from the traditional
court proceduresis related to the increased requirement for non-legal specialised
knowledgein orderto readthe judgement. Wolfgang Friendmann stressed that most
of the members of Government Committees, administrative organisations and special
courts are non-legal experts.(1). Similarly, an arbitrator selected by the parties
can decide and disposal of any dispute irrespective of the fact whether he was eq-
uipped in law. If law iscommonsensethen its development does not necessarily
andwholly dependuponthe knowledge of lawyers law or statutory law. The Com-
mission, therefore, adopted the approach that rendering justice is not the preserve
of legally trained mind. In rendering justice knowledge of local culture, traditions of
the society, behavioral pattern and commonsense approach are primary and rele-
vant considerations. More the administration of justice became characterised by
the application of law, a view developed that too muchlegalistic approach hinders
justice. Knowledge of local interest and local customs must be allowed to continue
to operate and taken note of in dispensation of justice. The Commission also ac-
cepts the notions of the juristic talents of Indian people embodied in various sys-
tems of what has been termed as "peoples law".(2) All these considerations shaped
the approach of the Commission in devising a participatory forum for resolution
of disputes at grass-roots level.

3.4. The prejudice that the Nyaya Panchayats composed of elected representa-
tives suffered at the hands of the elite and the superior courts cannot be wished
away. The growth of Nyaya Panchayat was thwarted by the Superior courts, but
could not subscribe to the view that a lay person not trained in technicalities of
laws is capable of resolving disputes and rendering justice. The question then arose :
whether an attempt should be made to unify both the points of view. The approach
of the Commission was that in order to ward oﬁ" the fate that Nyaya Panchayat suf-
fered, a synthesis must be made by providing the compoition of the forum consisting
of alegallytrained JudgeandtwolaysJudges. This system is in vogue 111 numerou§,_
countries, a notice of which has been taken in the working paper.

1Kalman Kulscar, Peoples Assessors in the courts, (1982), p. 24.
"See U. Baxi, The Crisis of the Indian Legal System (1982), Ch. H, p. 328.

After tentatively deﬁning the composition of the new forum, the Commission
approached the question of jurisdiction to be conferred on this forum. In order to
be realistic, the Commission proceeded to collect information about the institution
of the cases and the nature of disputes coming before the grass-roots level courts
at present. The Commission also enquired the nature of disputes coming before
the revenue authorities. The analysis of the cases instituted within a given period
revealed the nature of disputes coming before the court at the lowest level. From
this examination, the Commission worked out various heads of disputes which'
largely emanate in rural areas. Theapproach of the Commission was that simple
and iiiicoinplicziicd disputes which can be resolved in a short time should be entrusted
to the new forum. The nature of disputes thus would show that the participation
oflocalpopiilation would coiitributegreatertowardstlieirexpeditious disposal. That
approach was accordingly adopted.

3.5. It was not easy for the Commission to devise the method of selection of s¢1¢cn'on/nomjm.
lay Judges. There are two known view points in this behalf, election v. selection, tion of lay Judges.
Various statutes in operation in various States dealing with Nyaya Panchayats have
provided for election of members of Nyaya Panchayats either directly by the village
community oriiidirectly by theelected members of the Nyaya Panchayat. The Com-
mission was not unaware of the fact the the system of election has comparative ad.
vantages and disadvantages. Undoubtedly, the country elects its political managers.

Political justice of 'one man one vote' has considerably politicised even the rural
community. One may elect a representative to the Assembly or the Parliament '
and he would operate from a distance, but if one has to elect Judgesinasmall politi-
cised village community, the disadvantages would for outweigh advantages of elective
system. The Commission in order to establish that justice must not only bedone
but must seem to be done opted in favour of selected/iiominated lay judges.

3.6. Once nomination was tentatively decided as the method of selecting lay Preparation of
Judges, an authority had to be devised on whom power had to be conferred to Panel Of lay
select the Panel of Judges. If power is conferred upon an exclusive executive authority J"d3°'~
to draw up the panel, there was likelihood of overt interference of executive in the
selection of judges. If, on the other hand, an exclusive judicial forum was to select
members of the panel, difficulty will be experienced in ﬁnding out reputable social
workers who could be trusted to become lay judges. Judicial fora, by the very nature
of their duties, keep away from mass contact. Their sources for information about
genuine, honest, social workers whould be very limited. The executive, with its vast
network of officers right upto the village level and in view of its mass contact would
be able to spot persons in rural areas who could be trusted to be judges. The working
paper, therefore, devised a compromise by providing an interaction between the
executive and the judiciary in devising the panel. Accordingly, a suggestion was put
forth in the working paper that the District Magistrate of the District and the District
and Sessions Judge would both form a committee to devise a panel. To exclude' any
extraneous interference, a further safeguard was introduced in the form of super-
vision of the Chief Justice in the matter of drawing up of the panel. It was proposed
that after the agreed panel. with recommendations, is submitted to the Chief Justice
of the State High Court, he, with the assistance of two of his colleagues, would
ﬁnalise the panel. The approach in the working paper was to exclude extraneous
and irrelevant considerations in preparing the panel of lay judges so that the panelists
would inspire conﬁdence of the village community.

3 .7. Once participatory model was accepted as the starting point of discussion, Composition of
the composition of the forum had to be devised with such care that it inspires the G"""N"Y°'Y"1aY"'
conﬁdence of the consumers of justice. R_ejecting_a purely elected body and simul-
taneously rejecting a purely State-nominated judge, the Commission devised
a forum composed of .a legally trained mind to.be designated as Panchayati -Raj
Judge who would preside over the forum consisting of himself and two lay judges
to be selected by him _fl'.Ol'l'l the panel drawn up for the purpose. The three would
constitute the new participatory_forurn. In devising such a forum, the Commission
had in view the mandate of article 39A of the Constitution as also the Directive
Principles of State Policy. Such a forum would be free from the orchestrated atmos-
phere of the present day courts; theirs would be an informal approach and theatre-
inpt would be to resolve the dispute by consensus. It would have the advantage
of what is known as justice by one's _own peers. The working paper accordingly
suggested a sort of a village court consisting of a judge drawn from the State cadre
of judges to _be set up for the special purpose, called the _Panehaya'tiRaj Judges,
and two lay judges. Its advantage, according to the Commission infthe woiﬁng

piapher, ml tllilat the trai_ned'wo$i assist the-lay judges in ?1pplti_catioiij'
o w I e two ay wo ng r' commonsense approac ,
andguidedbythelocal trsdiiiens and culture, and the behavioural pattern of
the community in resolving the disputes. ' -- I

3. 8. The Fifty-fourth Report of the -Law Commission exhaustively examined the."
Code-of Civil-Procedure, 1908, with a view not only tostreamlining the procedure' '
but to make it less fornmlpmore simple and conducive to expeditious disposal of
cases and controversies coming before the court. The Seventy'-seventh Report also
madeeertain suggestionsiii this direction for. reducing the delay in trial of suit
before the trial 'courts and -'marginalise the arrears. P_urs,uant to these Reports,
certain amendments were carried out. The Commission was interested .in ascertaining
the impact of these amendments. The statistical information' furnished to the
Commission reyealed that instead_ of improving, the situation had considerably
deriorated and the pcndency, since the reports, had practically doubled. In para
2.3 of the working. paper, the' ﬁgures have been set out.. The_ Commission
was aware of .a possible pitfall in that merely devising a participatory forum by
itself would not effectively" tackle the problem if_it is burdened _with the same proce-
dure in dealing with-t-he dispute coining before it._ Procsssual justice, in the opinion
of the Comiiﬁssion; has overtaken substantial ]IilStlO9._ Numerous decisions rendered
by. the Higli Courts-and.th;e--.'Stip'reme Court on the provisions of the.Code of Civil
Procedure would hear outthis statement. Therefore, _the Commission suggested

_ that the osasor Evil Pi-'oreedure, 1908, and the more cumbersome Indian Evidce

Act,'1872, will not apply to the proceedings before the_participatory forum. The
Commission,' accordingly, proposed that a very _simple_ procedure which permits
a decision to'=be reached expeditiously and effectively, informed by justice, equity
and good conscience would govern the proceedings before the new forum.

3.9. If litigants can be appropriately described as consumers of justice and the 1-m,,pm_
court systemis devised to render service_to_ such consumers on payment of fee for
the service in the form of court fees, it is imphcit_ therein that the service must
be within the easy reach of the consumers of service. If conumcrism approach
appears crude in relation to the noble task of rendering justice, it can be said that

' in this age of the common man, justice must be taken to the doorstep of the people,

people in search of justice at present have to go to_the courts wherever they. are
established. Often times, people have to travel long distancetoliave access to justice.
It is shownto be time_ consuming, ' expensive and _even occasionally unproductive.
It is implicit in the setting up ofthe new forum that it would not only be easily acess-
ible but that it would try _to assemble at the place of dispute or . near the subject
matter of dipute. Accordingly, it hould have _easy mobility. Towards that end,
a transport vehicle must bQ_P1'_0Vlt_ied sosthat this new forum can speedily travel
to the place of dispute, carry justice to the doorstep of the people and dispose

j. of the matter on the spot.

3.10. A decision of a. court or a body set up to adjudicate the dipute by itself Huang" 0:!'
has hardly' any relevance to'_the _person who complains: of _a Justice having been orders or
done to him; decision is 8l.'1'lV_0d at, the benefit granted by the decision f°"""-
must be translated into action. Execution of the judgments and decrees 'of the
courts have been afruitful source of further and more expensive htigation. The
Commission was aware of_the observation of the First Law Commission in its
Fourteenth Report that "mordinate delays would frequently occur at various

_sta_ges the progress of_ an exectuion application." 1The First Law Commission

recommendations to expedite disposal of execution .
proceedings,' " "fhowever, retaining'_Order_2l_of the Code of'Civil Procedure» almost
' ,tli' I.s_w in its Seventy-seventh Report, dealt with
the *e4I¢ut1oii. Brieﬂy it observed that "the do not devote as
nine atten' csses"a_s_they do to regulaijsints for the reason that
tliedisposalofanexemmoncasedounotaddtotheuintofcasesdisposed of by
the courts."I some other msrgmgl amendments were suggested. While the
disease is diagnosed, the'remedies ha_ve_ proved to be _ine_ﬂ'ective. The problem
is thus further acceritnpted. The Commission accordingly invited debate by proposing
that the orders of the proposed new forurnshall, wherever permissible, be executed
forthwith on the spot. As an illustration it was suggested that ifthe dispute was with

.ILCIlbIrtsaIth. Report. Vol. I. Ch. XVIII. para 8. pop 435.
.l_.c'I iapm, cs. D{.'para11.3.P'i° 39.

regard to a right of way or a water channel or disturbances to easement of air
and light, the decision must be implemented by removing the obstacles and tran-
slate the beneﬁt given by the decision into action. And on the spot disposal which
the Commission proposed, is likely to have lasting effect than a protracted court
proceedings.

3. ll. Lastly, the question which engaged the attention of the Commission while Jurisdiction (Civil).

drawing up the working paper was the limits of jurisdiction to be conferred on
the new forum.The area of civil jurisdiction to be conferred on the forum did
not present a very serious problem. The Commission collected statistical infor-
mation from some Taluka level courts about the institution and disposal of cases
and the nature of disputes brought before such courts for resolution. A common
feature which appeared at that level was that the disputes emanating from rural
areas centred round agricultural land, right ot cultivate, tenancies, possession,
boundary disputes, records in respect of cultivation, right to take water from a
channel or tubewell and incidental questions arising under the various agrararian
reforms Acts. The information also revealed that there were petty disputes
relating to marriage, customary divorces, maintenace, custody of children and parti-
tion of ancestral property. There were some disputes with regard to possession
of farm houses, courtyards and right to graze cattle in commom pastures. This
information was of a revealing nature and accordingly the Commission tentatively
proposed area of jurisdiction on the matter of civil disputes under various heads
as set out in para 2.7 of the working paper.

3.12. The problem of criminal jurisdiction presented some diﬂiculty. Past experi- Jurisdiction
ence showed that Law Commissions and committees dealing with Panchayat(Crimina1)-

Raj Administration were reluctant in conferring extensive criminal jurisdiction
on these village level tribunals. This Commission wanted to make a noticeable
departure in this behalf because the proposed new forum was to include a legally
trained Judge on whom, in the State cadre, the powers of a Judicial Magis-
trate First Class could be conferred without controversy. If such a trained person
is to preside over the new forum, it would be grossly inpertinent not to confer exten-
sive criminal jurisdiction on such a body, The commission was, therefor, tentatively
of the opinion that the new forum will have jurisdiction to try all criminal cases
which are presently tried by a Judicial Magistrate of the First Class.

3.13. The Commission invited debate on the question whether the Civil juris' Jurisdiction
diction can be further enlarged to include disputes having a ﬂavour of denial of (M'9°¢"a"°°"S)-

social justice, such as, non-payment of minimum wages, denial of the beneﬁt of
agrarian reform laws, etc. '

3.14. The Law Commission having set up its tentative formulations _in a Extemofbgbate,

broad working paper invited a national debate on all the issues raised. It was
also suggested that it would be open to everyone interested in the matter of judicial
reforms to raise a debate on the subjects analogous to, or allied to, those set out
in the working paper. --The Commission records with satisfaction that a truly
national debate developed.

Views of
Governments.

Workshops.

CHAPTER IV

GENERAL FEATURES OF RESPONSE ON THE WORKING PAPER

state 4. l. The establishment of courts subordinate to a High Court is constitutionally

required to be undertaken by the State Governments (Articles 233-236 and
Entry 65 in State List ). Accordingly the, working paper was speciﬁcally circulated
to all the State Governments for eliciting the views and comments thereon. In
all, fourteen States have responded to the paper. The State Government of Madhya
Pradesh, while generally concurring with the proposals, felt that the system when
introduced may entail appointment of large number of judges and as such it would
involve enormous ﬁnancial requirement. On this premise, they expressed their
inability to adopt the system due to ﬁnancial constraints. The then Minister of
State for Law in the State of Rajasthan, while extending full support to the proposals,
forwarded number of suggestions to make the' system more effective. The State
Government of Orissa welcomed the proposal but voiced an apprehension that
it might be difficult to ﬁnd suitably trained judicial» officers to hold the type of
courts envisaged in the proposal. The State Governments of Punjab and Haryana
while welcoming the proposal cautioned that the jurisdiction of Nyaya Panchayats
should be such that there is minimum possible risk of party politics contaminating
the decision of cases. The State Governments of Bihar, Kerala and Jammu &
Kashmir supported the proposal. States like Karnataka and Maharashtra did with-
hold their support. A majority of States expressed broad agreement with the change
envisaged in the working paper. However, Governments of certain States and
Union territories like the State of Meghalaya and the Union territory of Aruna-
chal Pradesh, where indigenous judicial system is in vogue for the -tribal people,
were of the view that the existing system should not be disturbed as they not only
effectively dispense justice but the system is inexpensive and speedily available
at the door-step of the tribals. Let it be clearly understood that where the system
of judicial administation at village level is quick, inexpensive and easily accessible,
it must not be disturbed. However, as and when they would like to get into the
national mainstream, then the question of adopting the forum which is herein
recommended must be adopted.

4.2. The workshops organised by the Commission attracted a broad spectrum
of intelligentia interested in legal judicial system. Judges of the Supreme Court
and High Courts, Judges of the Subordinate Judiciary and Members of the Tribu-
nals, Advocates, academics, social activists, votaries of public interest ligtigation,
officials manning the Law and Justice Department of the Governments and consu-
mers of justice participated and enriched the debate. There was a broad consensus
with the proposals set out in the working paper. There was near unanimity on
the question that the present justice system has not only outlived its utility but,
in fact, has become counter productive. Divergence in views appeared not on the
requirements of change but the scope, volume, direction and degree of change.
Votaries of status quo, while conceding that the justice system has become stratified,
advocated peripheral changes. This ignores the past experience. Some centrists
were of the opinion that the system which is in vogue over a century should be
given a further lease of life and to make it resilient, they suggested such inputs as
additional manpower and modern electronic gadgets.

On behalf of the Law Commission, after explaining the salient features of
the proposals, the debate was listened to with rapt attention so that any sugges-
tion worth considering may not escape its notice. Whenever, necessary the
Commission intervened in the debate. When more clariﬁcations were
offered, those who came with reservations were ready to reconsider their views
and ﬁnally a broad consensus emerged. A free and uninhibited democratic discussion
was bound to throw-up hardcore negativists. While they advocated hands off
from the present system, they were unable to explain its present tragic position and
how to make it resilient and effective. No suggestion in that behalf worth-considering
was put forth. An analysis of the views expressed by participants revealed a broad

consensus in favour of the propsols. Speakers repesenting social service institutions
desired some changes in certain proposals while concurring "with the suggestion of
introducing a new forum for resolution of disputes. They were activists in the ﬁeld
of legal aid movement, social service and Lok Adalats. Their reservations were on
the question of qualiﬁcations for panelists, method of election versus selection and
the authority to drawup a panel of lay Judges. '

There were votaries of the retention of the present Code of Civil Procedure with
some further changes to be introduced in the same. They were of the opinion that
substantial justice can only be rendered by following a detailed prescribed proce-
dure. - .

Some participants coming from rural areas had genuine apprehension about
the lay Judges remaining judicially independent while participating in decision
making process. Their apprehension was that the village life has so much been
politicised that it is impossible to come across any 'social animal, who is a political'.
Add to it, according to them the factious village' atomsphere disloving divisive ten-
dencies along caste, class and religious denomination and, therefore, it would be
impossible to ﬁnd honest, socially-oriented village people who can be trusted for
rendering even handed justice. While appreciating that knowledge of law is notasine
qua non for dispensing justice, they voiced their reservation on the question whether
a society governed by rule of law can have judicial administration not manned by
legally trained persons. They were disconcerted by the fact that in a caste dominated
bureaucracy, the system of selection of lay Judges would effectively exclude persons
belonging to Scheduled Castes, Scheduled Tribes, minorities and women, who must
find representation in administration of justice.

These dilliculties connot be dismissed as being without merits. All safeguards
have to be devised to protect against such vicissitudes that the new forum may
face.

-3-nu l.
voiced herein, a~n§lr'{6'i'4'1 géliritl
tlé Gﬁvéﬁlihea

4.3. Before dealing with the apprehensions
raised by certin State Governments may be disposed of ﬁrst. Sorrlﬁltfl
apprehended that the proposed system of administratibii*'6'l" tYéebi§f¥iitee'?iaW161/east?
a heavy ﬁnancial burden on the State exe e ufe'éttiﬁ'fW'fi§ d'9tli,e'i'r, éziﬁsV"tU
provide necessary finance for effectl\flé'y'i1h lelifﬁrlt gt tlflejp a'l{"I3lié'€6H1iiii1~'
ssion sees no merit in this apprehension. It is the fundamental obligation of
every centralised governmental administration to provide for mechanism for
resolution of disputes arising wihthin their jurisdiction. No civilised govern-
ment can escape this responsibility. No government can afford to have their
citizens perpetually engaged in finding solutions to their disputes by an unen-
ding process which may be simultaneously costly and open-ended. This funda-
mental duty cannot be diswoned under the pretext. of non-availability of requisite
of requistite finance. Whilethe Commission is not satisfied that the proposed change
would involve a heavy financial burden, it is of the opinion that outlay on taking
justice to the door-step of the people is development expenditure. The approach
till today to treat it as a non--development expenditure, enquires reconsideration.

Again the States do levy court fees. It is a tax on the administration ofjustice-
It is not the purpose of the Law Commission to examine the various nuances of
the levy of the court fees. The commission, for the present, accepts it as a necessary
evil. A Committee of the Law Ministers on rationalisation of court fees collected
the statistics of expenditure on the administration of justice. For the year 1981-82,
the total expenditure of 22 States was Rs.ll2.7l crores and surely their collection
of court fees was in excess of the same. This was also the View of the Gujarat High
Court when it pointed out that the amount collected by court fees_is always higher
than the expenses on the administration of justice. The Commission is, therefore,
not impressed by this submission of financial constraints because administration
of justice is a social ovehead in a developing society. However, one need not go
that far as pointed out earlier, it pays for itself.

Additional expenditure, if any, has to be set off against the benefit conferred
by the proposed new system. Cost benefit structure is a related phenomerion. The
increased expenditure, if any, on accout of a transport vehicle to be provided to the
Presiding Judge visiting villages to dispose of disputes on the spot and allowances
that may have to be paid to lay Judges, should be set off against the beneﬁt to the
litigant, who at present is required to take mumerous journeys to the seat of the
pourt as also the expenses to be incurred by him on lodging, boarding and transport
of the witnesses whom he is required to take to the court on numerous occasions,
In one of the workshops, a litigant from village Tapakara near Ranchi, Bihar

86.-M/P(N344,1i\4ofLJ3qCA--s2,

Financial cons-

lﬂ traints.

Di fﬁculties

litigants.

State, vividly described his experience about his quest of justice since 1969. He
expressed his apprehension whether the case would be disposed of in his lifetime.
It was a petty dispute which should have been disposed of at the site in a short time.
He stated that he has already spent Rs.l0,0()0/- in search of justice, He pointed
out that on numerous occasions, he had to 'take his witnesses to the court by spen-
ding on transport and providing meals to the witnesses which used to cost him
on an average per witness Rs.20/~ per adjournment. He frankly stated that to
protect against the witnesses being bought over, he had to pay something to grease
the palm of the witnesses in the form of sweet packets. The man hours lost appeared
to be nobody'concern. The case was an eye--opener.

of 4.4. A litigant in search of justice since 1972 enriched his tale of woes at the
workshop held in Banaras University at Varanasi. According to him, on
an average, there is a floating popualation of 50,000 litigants including witnesses,
who visit Varanasi District Court Compound daily. According to him, the average cost
of transport plus snacks works out Rs. 10/- per day per individual. The longest distance
one has to travel to reach court at' Varansi measures about 58 Kms. Most of the
places in the hinterland within the jurisdiction of District Court at Varanasi are not
connected by railway with Varanasi. Bus transport apart form being hazardous
is very uncomfortable c.::cl' tedious. One is required to travel on an average 2; to
3 hours one way. It doc; not require a genius to calculate this wasteful expenditure
on what is euphemistically called search for justice, but showm of embellishment
it must be described as resolution of one's legitimate disputes. Cost benefit structure
must take within its compass not only the State expenditure on establishment and
maintenance of courts but the cost incurred by litigants on travel, food and sundry
expenses for access to courts. Comparatively speaking, instead of numerous litigants
and witnesses travelling to the seat of court, the court, namely the presiding
Judge and two lay Judges and one or two staff members, all can travel in a jeep
to be provided by the State. Some allowanes to these persons would have to be
provided. But the litigants will save all expenses on travel, transport, food, expenses
for witnesses and will simultaneously save loss of man days. Taking a very modest
view of the matter, the Commission is of the view that there would be both qualitative
and quantitative benefit by ushering in the model recommemded herein.

CHAPTER V

EXAMINATION AND ANALYSIS OF CRITICAL DISCUSSION ON
CERTAIN DRAFT PROPOSALS

5.1. If the historical perspective and past experiences are not to be ignored choice and policy
because of an articulated reverence generated for the existing system of judicial decision.
administration by some vocal elements, it becomes a compelling necessity to give
up any effort at introducing peripheral changes, an exercise repeatedly undertaken
in the past. Any amount of legitimation of the present system would not hide its
utter and almost irremedial failure. All the previous attempts and their fall-outs
have been succinctly set out in the working paper. Every possible attempt to reform
and revitalise the system not only failed to yield the desired results, but, in fact,
aggravated the situation. To chalk out a new path became a compelling necessity_

Every organised society, primitive, tribal or clan, is likely to generate disputes.
Consequently, every such society must evolve a forum for resolution of such disputes.
Prior to the imposed imperial court structure, socialisation of ﬁnding solutions
to disputed issues, began with appearance of a "third party"! The organisation
of the village as a social and political unit ﬁnds reference in vedic literature. Village
assembly with local headman provided forum for resolution of disputes. People
participated in the administration ofjustice. During colonial rule State courts
exclusively took over the function of resolution of disputes.

5.2. While visualising the possible direction in which the reform of the system Evaluation of past
must move, the prior experience and the experimentation must be duly evaluated eXD3ri6n¢€-
and a lesson be drawn from it. The stark reality that emerges from the historical
evaluation of the past attempts and the experience thus gained is that the tinkering
with the system at the fringes would be of no avail. On the contrary, it is-likely to
add to the malaise. The true test to measure the effectiveness of a change sought
to be introduced must be the pains and gains of an average citizen, the consumer of
justice. The harsh albeit unpalatable outcome of all attempts made so far to improve
the system must provide an art lesson in that if simplest and non-complicated dispute
between rural people is sought to be dealt with by the present system keeping struc-
tural part intact, the effort is bound to go down the drain. It would in no way make
the system resillent, effective and responsive to the felt needs of the times. The
inescapable conclusion thus is that a basic structural change in the mode, method
and forum for resolution of speciﬁed types of disputes is a sine qua non before the
system is ingulfed by its own debris.

5. 3. It would be unwise to look at the problem from the point of view of court Problem to be exa-

management only. In other words, it would be very imprecise to examine the matter m."_'°':.'""I}e.1'3l"l°f
from the aspect of ever-growing court dockets. Such an endeavour has to be guided 1{;:,:,j;'?iO,?':ff":lf:
by the aspirations proclaimed in the Constitution of India. Article 39A of the system imperative,
Constitution of India directs the State to secure that the operation of the legal sys-
tem promotes justice, on a basis of equal opportunity, and shall, in particular,
provide free legal aid, by suitable legislation or schemes or in any other way, to
ensure that opportunities for securing justice are not denied to any citizen by
reason of economic or other disabilities. This is the constitutional imperative. Denial
of justice on the ground of economic and other disabilities is in nutshell re:"erred
to what has been known as problematic access to law. The Constitution now
commands us to remove impediments to access to justice in a systematic manner.
All agencies of the Government are now under a fundamental obligation to enhance
access to justice. Article 40 which directs the State to take steps to organise village
panchayats and endow them with such powers and authority as may be necessary
to enable them to function as units of self-government, has to be appreciated afresh
in the light of the mandate of the new article 39A.

5.4. How does one develop an approach to access to justice contemplated by Shift in the emph-
article 39A? Hitherto, as we will shortly note in our discussion of the organisation';'}51'esc'(')'l'"'tl's° ggfgig
of Nyaya Panchayat (by whatever name called), the dominant consideration has denial of jﬁstice to
been to ameliorate the burden on the court-system, not so much to prevent denial the citizen as a res-
of justice to any citizen by reason of economic or other disabilities. The command U115 0f aF¢i°1€39A-
of article 39A now is to focus on these disabilities and to develop schemes for their
removal. The managerial consideration of ameliorating the burdens on court-
system through creation of local fora for dispute settlement can not predominate any
longer.

'. Kalman Kulscar, Peoples Assessors in I/zeucﬂourts: 'study on The Sociology of Law, (1982). V
p. 17.
15

86eM/P(N)4,41 M9 KL} &.CA---2(a)

Disabilities in the

5. 5. The 'other disabilities' referred to in article 39A, distinct from the economic
disabilities, are assuredly diﬂiculties posed by the existing proﬁles of the Indian
Legal System. This system,'as has already been pointed out, itself imposes disabi-
lities oni pe'dple'it1?thelr quest for justice. The disabilities arise because of lack of
sustable local fora for dispute handling and an emphasis on professionalised justice.

_'lTh.e,rcnovation of the system, now contemplated by the Constitution, requires
; us t0:1"emove,these. disabilities. The professionalised model of justicing cannot be

Alternative system

People's partici-_

pationuin the admi-

l')ISC5fHflUrl"(Yfj{ﬂ(lCC."
ii5'_i ': / I

eiitended to Bharat, not merely because India has over 2,50,000 lawyers only but
also because bulkof them are located in urban areas and given the voluntary nature
of theprofession, it is at this stage not possible through the law to plan their dispersal
in a_m_anner which would adequately and equitably serve the needs of the Indian
masses. Such a measure ought to be at leadt proposed and discussed. But, for the
time being, we accept the realities as they are.

5.6.. If. professionalizedjmodel of justice delivery thus cannot be extended to
incelthe legal needs of the Indian masses, it becomes incumbent to consider alterna-
tii/es.' The alternative isdeprofessionalized model of justice. In this model, the
indigenous juristic potential of the people, including their own sense of justice, is

allowed room'for development. This has been sought to be done through people's'

particjpatioii in the administration ofjustice.

5.7. Settlement oftdisputes arising in «a locality by a body of laymen of the

locality isalmost universally recognised. Number of such institutions all over the
world' niziy be brieﬂy noticed to substantiate this statementl. The institution of
Jtisticejof the Peace in England and United States of America, 'Peoples Court' in
USSR andwxvitli minor variations in all Eastern European countries manned by
Lay,gJustices, all entail people's participation in the administration ofjustice. Yugos-
lat/i§i,',is making an attempt in the direction of setting--up exclusively lay tribunals
iiiorgor lesslbascd on the ideology similar to that underlying our Indian Pancha-
y'aLs__-'};, 'So is the remarkable experience of Hungary in the System of People's
/§,;,s¢;s,s;s,i-s.=* jjﬁopularl assessors, mediation committee, the district committee, the
r"6':)<,'tc:l'e}it_'S,_C_Omi}jitte6 as devised in China provide for people's participation. There
all§i'L_§lli)l:Iaf institution in Lusaka, Burma and Sri Lanka. 'The concept of lay partici-
patgon in judicial decision--making made its appearance centuries back and it began
witliithe appearance of aA"thirdgpai:ty" who establishes the ransom following the
periods.-otfiself judgment or blood feudpl Mediation model for settling disputed
issues developed when and where the third party intervening in the dispute had

_ Jsutiicient prestige and power to enforce decisionﬁ ransom indicated state inter-
' ,_ ventioii. private injury became public injury which assisted the process under which
.. passing judgement became a state function". In some form or the other, lay local
' participation in the mode and method of resolution of disputes was always in exis-

Indigenous system

ence.

, ' 5 L 8. Before the advent of the British system of justice, there undoubtedly was an
indigenous system for resolution of disputes in India. The impact of English Lan-
guage. Westerrtliterature, the Britishrsystem of justice and the universal rationality
of Western Law, have combined to induce an inbuilt prejudice for anything ancient.
However, ,whilet,rying to unearth andevaluate the indigenous system, it was found
'that the essentials of our ancient system were not very different from those of our
present systemf. fa While comparing. the two systems, it was accepted that the
subsidiary .features of the present system include clumsy and cumbrous procedure,
while. the earlier, one was simple and less--formal. Undoubtedly, 'as the society

,. .. ... ,, ..,,... ,.._.--....»_...__-. ..__._-.._. -._..i....A._h,_.

'The Institution of 'Justice of the Peace' in U.K. dealing with the greater part of criminal

' m.~_iurisitlictioa1.and a. small but not unimportant part of civil jurisdiction 'is the wonder of all foreigners,
i; for nothing like it_vexists,in any other part of the world'. 'With few exceptions, this institution has
' tvorked quite VallSfa'CtO'1'liy and it is quite cheap'; C.K. Allen, The Queen's Peace, The Hamlyan

:Lectures'(F"ifth Se'ri_es,'1953). P. 178.
'3 'Report of the Study Team on Nyaya Pzinchdyat, Government of India, Ministry of Law

' (April 1962), Ch. I'II,iparya 1'6,-Np. 29.

5* See Kalman K"ulsc',ar,"People's Assessors in the Courts,' A study on the Soci'nlog_v of Law
(1982). A ' - I i

W 'Id., 1:. i7. '
5 111., p. 19.
5"Id.,p. 18.' I .
7 LCI Fourteenth Report, Ch. IV, para 5, p. 25.

177

advances from stage to stage, its needs alter from time to time and any system which
governs the functioning of society or its component parts would also call for progres-
sive modification". One has, therefore, to keep in mind while devising the modern
system, the changes that have occurred in the conditions and structure of the society
for which the system is to be devised. ''7

5.9. The model of new mechanism for resolution of disputes at grass-roots level
was misdescribed as a Nyaya Panchayat of the earlier days. Serious reservations
were voiced at a number of workshops organised by the Law Commission in different
parts of the country against reactivation of Nyaya Panchayat which, it was said,
in the prevailing atmosphere in the rural area was foredoomed to failure. The past
experience has been one of lack of conﬁdence in people's participation in adminis-
tration of justice. Somehow or the other, popular participation in the administra-
tion of justice creates misgivings in the minds of the people other than those to whom
such an opportunity has never been extended. The urban elite consider that adminis-
tration of justice requires technical knowledge of law and those uninitiated in the
knowledge of law cannot be entrusted with the task of administration of justice.
'Justiceaccording to law' has been interpreted to mean 'justice rendered by those
who know law'. In other words, advanced knowledge of law is a pre-requisite for
dispensation of justice. Scholars in the sociology of law have now recognised the
requirement for non-specialised knowledge in order to render justice. Vilhelm Aubert
after a detailed survey concluded that 'atleast in Norway the pure legal model now
played a reduced role in the organised resolution of conflicts"-'. Once the assumption
that knowledge of 'law is a pre--requisite for rendering justice is shown to be unfou-
ded, one can safely think of a better model of participatory justice. The knowledge
of local traditions and customs and awareness of local interests would help in making
lay participation in administration of justice effective. The system of Jury is an
apt illustration. People's participation in administration of justice may help in
rejecting classical Marxist's assertion that the court is an instrument by which the
dominant social class maintains its hold over the remainder of population. In fact,
the relative absence of status differentiation between tribunal and disputants, the
informality and the ﬂexibility of the procedures, the social and physical proximity
of the proceedings of the location of the dispute or the violation, enhance the effecti-
veness of the popular courts in reshaping the attitudes and behavioral patterns of
workers and residents3. Participatory ideology has two related objectives; ﬁrstly,
to facilitate the involvement of the working classes and the rural peasantry in the
processes of conciliation panels, so that they may thereby sharpen their awareness
of the socialist policies and developmental programmes of the Government, and
recognise how such policies may be applied towards the resolution of the social and
inter--personal problems of the area. Secondly, through the articulation of these
policies and goals in the processes of thse panels to further reshape prevailing values
and attitutes of the disputants and other members to the needs of a socialist society.

5.10. Let us at this stage recall the apprehensions voiced by the earlier Law
Commissions on conferring wide jurisdiction on Nyaya Panchayats. The Civil
Justice Committeee (1924-25) observed that 'communal differences and factions are
in the way of any further extension of the jurisdiction of these tribunals'. Though
there may be a grain of truth in this belief, it appears to be an over-reaction. In
villages, where there are common interests to be protected, common services to be
rendered and common funds to be administered, it is idle to ignore the common
life of the village in which the necessities of neighbourhood have held their own or
have prevailed against the divisions of caste.4 The law Commission in its Four-
teenth Report, after taking note of this observation and also after taking note of the
evidence gathered to the effect, further observed that 'these factions and divisions
have increased by reason of the introduction of adult franchise all over the country
and the appearance of political parties in the villages', rejected this criticism and
discounted the apprehensions. The law Commission concluded that 'there is no
reason why, with proper safeguards, these courts (Nyaya Panchayats) should not
function with a fair amount of succcess and either conciliate or decide the petty

1 Ibid.

9 V. Aubert 4--- : "Law as a Way of Resolving Conflicts; The Case of a Small Industrialised
Society"----in : Law in Culture and Society, pp. 299~--302.

3 Neelan Tirucholvam, The Ideology of Popular Justice in Sri Lanka, p. 7.

* "Report of the Civil Justice Committee", Page 116, cited in LCI Fourteenth Report, Vol. II,
C11. 43, para 7, p. 876.

Apprehension
against reacti-
vation of Nyaya
Panchayat.

Apprehensions
about the Nyaya
Panchayal system
dispelled.

disputes arising in the villages'1. Similarly, the Legal Aid Committee set up by the
Government of Gujarat took notice of 'the factious atmosphere in villages further
sub-divided by caste, community and politics', and entertained a genuine appre-
hension that 'it would be difficult to expect evenhanded justice to be meted out by
members of Nyaya Panchayats who would belong to one faction or group or the
other.'3 These hesitations were dispelled by the overriding consideration that the
Nyaya Panchayats with a slightly different pattern would be an effective vehicle for
rendering justice on the spot or at the doorstep of the litigants. It would have an
healthy impact on the village economy inasmuch as it will be a low cost justice system
and man days in securing justice would not be lost. The psychological change that
the rural poor would undergo by this altered system of administration of justice by
their own peers in substitution of an alien system would be immeasureable. Trust
them, provide safeguards for possible pitfalls, but do not reject them. Any innova-
tion is always fraught with unseen danger but that by itself cannot be a road block to
change.

Constitutional _5..ll. forum for resolution of disputes with people's participation in the

justiﬁcaiion for a administration of justice is the constitutional goal mandated by article 39A. It

new f0FUm Of may also appear to be justiﬁed in terms of providing simple procedure which may

Nyaya Pa"°hay""' help in ﬁghting the delay in the disposal of disputes simultaneously reducing the cost
and making justice effective, inexpensive and substantial in character3. From
State court to participating in the administration of justice is the goal intended
herein.

From Nyaya Pan_ 5312. In order to avoid any possible confusion arising from the 'distressing

chayat to Gram experience of the present state of the Nyaya Panchayats and to give a distinct conno-

Nyayalaya» tation to the new forum which is in more ways than one dissimilar to the existing
Nyaya Panchayats and which is couple of steps ahead of it, it was considered advi-
sable to ﬁnd a new name for the forum. There were numerous suggestions in this
behalf. The name of the forum presented a complex problem. Nyaya Panchayat
was the most common name proposed, but it also carried a stigma of its past failure.
Lok Adalat is at present a popular phenomenon. That name must be rejected for a
valid reason in the sense that Lok Adalat, as is understood by people at large, is a
voluntary organisation to which no one can be compelled to submit his case. The
Commission is recommending the setting up of a statutory village level court and its
jurisdiction is not optional. If the dispute is of the nature which falls within the
jurisdiction of the proposed forum and arises within the local limits of the
jurisdiction of it, the parties, if they seek resolution of the dispute, have no option
but to resort to it. Therefore, the name Lok Adalat would not be onomoatopoetic
and might even be misleading and, therefore, does not command to the Commis-
sion. Having examined various alternative suggestions, the Commission feels that
the name 'Gram Nyayalaya' would adequately describe the new forum.

Structure of Gram 5.13. Opinions widely differed in the matter of structure of the proposed

Nyayalaya, forum. Some of the social activists and village level workers leaned in favour of a
wholly elected body. The election, according to them, may be either direct by the
village community or indirect by the elected members of the local Gram Panchayat.
Those reacting to the experience of present day Nyaya Panchayats advocated induc-
tion of a legally trained mind in the composition of the Gram Nyayalaya. According
to them, this would save the forum from the warth of the superior courts and will
also cater to the view that a legally trained mind is available for dispensing justice.
Those in favour of induction of a legally trained mind suggested the induction of a
Munsif-Magistrate/Civil Judge (Jr. Division)/Judicial Magistrate First Class. Some
advocated retired Judges' service to be utilised in this behalf. One view of which
notice must be taken was higher level Judges should man the Gram Nyayalaya
so that it would inspire conﬁdence in the litigating public.

The constitutional goal is to make justice inexpensive, easily available, non-
formal and substantial. The quality of justice would depend upon the nature of the
forum that will be set up to render justice. It is off-repeated occasionally with some
emotional overtones that we may better be ruled by laws than by man. But the man
who should rule the society in the matter of rendering justice must be men of sound
commonsense, unbiased in approach, free from political compulsions, religious

LCI Fourteenth Report, Ch. 43, para 25, pp. 911 and 912.
Report of the Legal Aid Committee Government of Gujarat, (1971), para 13.14 (iii), p. 211.

For a comprehensive Critical Review of Nyaya Panchayat System, see U. Band, The Cristi
of the Indian Legal System. (1982), Ch. 10, pp. 295-327.

cam»-j

iéi

bigot and caste considerations. An elected body may not be able to ensure the'
induction of, apart from legally trained persons, such reputed socially oriented
village workers. In order, therefore, that the Gram Nyalaya may inspire conﬁ-
dence in the village community, it became an imperative necessity to have a forum in
which a legally trained mind will preside over the body. 'However, to avoid such
legally trained mind approaching village disputes from a purely technical legalistic
approach, it would be useful to induct two other persons who are village level workers
and who are educated and socially oriented. The three should constitute Gram Nyaya-
laya. It would not be too unwidly and it would have all the advantages both of
state courts approach and participation of lay public in _the administration of justice.

The object underlying the induction of a legally trained mind is to ensure that
in rendering justice, substantive laws would be respected. There would be a sort
of or some kind of continuity with the present system. The attemptris to provide
an interaction between a legally trained Judge and socially oriented village workers.
The forum would also allay the apprehension more imaginary than real of the super-
rior courts in the matter of dispensation of justice.

The Gram Nyayalaya should consist of a legally tra-ined~Judge belonging to the
cadre of Judges to be speciﬁcally set-up for this purpose. In order to select legally
trained Judges for Gram Nyayalaya, the State shall form a Panchayati Raj cadre of
Judges. They should ordinarily from part of the subordinate judiciary in the State.
The Judge must have all those qualiﬁcations which he should have for being recruited
as Munsif Magistrate or Civil Judge (Junior Division) and Judicial Magistrate,
First Class. This to some extent ensures continuity with the present system.

The Gram Nyayalaya shall consist of thus the Panchyati Raj Judge and two lay
Judges. There were suggestions to the effect that instead of two there must be four
lay Judges so that the historical tradition of India of ancient antiquity 'Panchi Par-
meshwar' would be demonstrably carried out. The Commission is of the opinion
that for a permanent continuing body, availability of ﬁve Judges on every occasion
may create problems and for simple village level disputes, it would be an unwidly
body. Therefore, in order to have a compact body, the Commission opted in favour
of three Judges including the Panchayati Raj Judge.

The approach of the Commission will ensure that a legallytrained mind is
available for dealing with questions of law if they arise while disposing of the dispute
brought before the forum. He would render assistance on questions of law to the
two lay Judges. The two lay Judges would bring in the wealth of I local customs,
traditions and knowledge of village problems. While rendering justice, at there would
thus be an interaction of a Judge coming from a different locality, born and brought
up in a different atmosphere and' having the wealth of knowledge of the law in force
with thecommonsense approach to dispensation of justice. The resultant outcome
would ensure not only justice according to law, but-justice according to commonsense,
equity and good conscience. It is expected to be freed from the complex procedural
and Evidence Act formulations.

5.14. The mode of selection of the Panchayati Raj Judge should not present any Selection of the
difﬁculty. As he is to be drawn from the cadre of Munsif Magistrate'/Civil Judge (Jr. Presiding Judge-
Division), Judicial Magistrate, First Class, for the time being 'the same method of
selection will apply which the Commission is informed, is that the selection is done
by the State Public Service Commission in which a Judge nominated by the Chief
Justice of the concerned High Court participated. For the time being, 'the same
method may be adopted. As the proposed forum requires to beestablished in such
manner as to generate conﬁdence in the litigants coming before it, it is desirable
that a Member of the State Judicial Service at the lowest level with three years expe--
rience should be selected for this cadre. "The selection" must be made by the? High
Court.

5.15. Selection of lay Judges presented a formidable problem. ' Extreme views Selection of Lay
were expressed in this behalf. There were votaries of wholly elective element. 'There Judges-
were advocates of selection by non-governmental social service organisations. *There
were others who espoused the view that once electiveiprinciple is substituted by
selection/nomination principle, it would strikeat the very root of participatory
justice and the power to select is likely to be abused and misuesd. Those in whom
the power is vested, it was said, would so exercise the power that political inﬂuence
cannot be excluded. Once political inﬂuence intrudes into the selection' method,
it would strike at the very fundamental assumption of judicial system namely, Judges
are free from political inﬂuence or political bias. It must be confessed that no solu-
tion is'likely to be foolproof or would satisfy all,'dlﬂ'erent; pOlI1tS' of view.

Authority and
power to select the
panel.

The votaries of election method asserted that if participatory justice is to
generate conﬁdence, the forum must have people's chosen representatives. They
are votaries of the Magna Carta principle of trial by one's own peers. They asserted
that re-move the election and the concept of participatory justice becomes a shadow
without substance. Elective principle has been supported by Zinabhai Darji Report
as well as Balwantrai Mehta Committee. Ashok Mehta Committee Report was not in
favour of elective principle. Rajagopaul Committee has advocated elective principle.
Democratic decentralisation would inhere the concept of elected judges. It is not
possible to completely disabuse one's mind of politicised village atmosphere. Pan-
chayat Elections are fought on party lines. Elections do divided electorate. It gene-
rates heat, passion and attachments. It leads 'to violence. Further the factious
village atmosphere is sub--divided on caste, communal and religious considerations.
Once election is brought in, it would be difﬁcult to keep 'its abuses out of it. Un-
doubtedly, the nation elects its politicalmanagers by direct election. That should
be the goal but when it comes to electing Judges, slightly different considerations
enter the verdict. By and large, the view expressed was that political alignment, must
be avoided in selecting/electing Judges. Once elective method is adopted, it is diffi-
cult to keep this consideration out of the ﬁeld. Undoubtedly, the votariesiof elec-
tive method included such highly placed persons as Chief Minister of Rajasthan,
Director of Banwasi Sewa Ashram and Several others. The contrary view is equally
ﬁrmly expressed. _ But on the whole the balance tilted in favour of selection and agains
election. . -

Once elective element is excluded the question is how to select/nominate panel
members. Two questions were raised in this behalf; (1.) in whom the power should
be vested for selecting/nominating panel of lay Judges and (2) who should ﬁnalise
the panel ? - J

5. 16. The approach in selecting such an authority which would select a person
to be vested with judicial power of the State should be such an authority as would
be immune to external pressures as far as possible. The authority should have the
paraphernelia to collect correct antecedents of the proposed persons. One view
was that such a panel should be drawn up by the Collector. S.D.O., M.L.A., etc.
and it should be ﬁnalised by the -District & Sessions Judge. Another view was that
because of the frequent transfers of District Magistrates, and District Judges, they
would not be in the know of detailed antecedents of a person proposed to be nomina-
ted. For this reason, the previous District Magistrate and District Judge should be
associated if the present incumbent of the post has been in-charge for less than six
months. One of the'learned Judges of the High Court responded who to the Wor-
king Paper has' remarked that the panel of lay Judges should be ﬁnalised by the
District Judge alone. He may consult the Taluka level Judges, Chief Judicial Magis-
trate, District Magistrate, etc. in doing so; but he should have the ﬁnal say in the
matter since the District Magistrates are invariably Collectors or Deputy Commis-
sioners and may not be able to act on their own. He suggested that there is no need
to provide for the approval of laymen's panels by the High Court because this will
cause delay and increase the bureaucratic work. Instead, the High Court should
have a power of revision of the panel which should be exercised by it suo motu or on a
complaint.

Another learned Judge suggested that the District Judge should alone draw up a
panel after taking into consideration such names as may be suggested by the District
Magistrate. He apprehended that the political inﬂuence on the District Magistrates
cannot be ignored and if political inﬂuence is likely: to be exercised, then the evils
disﬁguring the elected Nyaya Panchayats are likely to percolate into the new scheme.

Having analysed in depth various suggestions, the Commission is of the opinion
that interaction of District Magistrate and District & Sessions Judge would reason-
ably ensure a panel of competent persons free from political caste, communal,
religious or parochial considerations. Therefore, a_sel_ection committee of District
Magistrate and District Judge of the concerned district should be constituted in
each district for this purpose. To begin with, District Magistrate and District
Judge should separately draw up a panel upto anumber far exceeding the minimum
required. Thereafter, they must exchange their panels. A few days after, they
must assemble, interact and ﬁnalise the panel. The panel of laymen should, as far
as possible, be an agreed one, failing which the District Magistrate and the District
& Sessions Judge may recommend their separate lists_ and also their objections
to the names suggested by other member of the selection committee. The entire

panel whether it is drawn up on consensus, or partly agreed or wholly' separate;
should be submitted to the Chief Justice of the High Court having jurisdiction;
The Chief Justice, in consultation with two of his colleagues, shall ﬁnalise the panel.-
It would be open to him to call for additional information about the persons ﬁguring
in the panel or separate lists submitted by the members of the selection committee;
The selection must be conﬁned to the residents of the District. While preparing
a panel a member of the selection body, may have recourse to his subordinates to
collect the antecedents of the proposed persons. The members of the selection
body should have ﬁrst hand information, as far as possible, through authentic sources
enabling checking of the antecedents of the persons proposed by one member or
by the other member of the selection committee. It is imperative that the person
to be selected must satisfy the criteria hereinafter prescribed.

It would be open to the members of the selection committee to have discussions
with non-political social workers or ofﬁcers of social service organisations in the
district. Care should be taken to provide representation to residents of various
talukas/tehsils comprised in the district. Adequate representation should be en-
sured to members other weaker sections of the society, members of SC/ST, women
and backward classes. Panel members must represent the cross-section of village
community.

5._17. Diverse views were expressed on the minimum qualiﬁcation, the lay Educational _and
judges should have. It was said that the lay judges should have minimum education,°'h'"' 'l"3"ﬁ°3"°"5-
and must be men of integrity, character and responsibility Ordinarily, active mem-
bers of political parties, wealthy persons, big farmers and moneyl.nders should
be excluded from consideration. Members of the depresssed and deprived classes,
should have preference. Persons belonging to teaching profession, social workers,
ofﬁce bearer of non-governmental, social service organisations should be en-
couraged to be on the panel. One speaker remarked that they must be within the
age group of 25 to 60. In the matter of educational qualiﬁcation it was said that
a degree holder must be preferred but if not available the selectee must have passed
higher secondary school examination. Winners of national awards if residents in
the villages, must be preferred. One View was that local residents belonging to
professions or in service would perform their duties more satisfactorily, compared
to marginal farmers, petty shop-owners and the like. Residence in the area for
at least 260 days in a year would make the person eligible for being put on panel.

Some social activitists submitted that educational qualiﬁcation would be counter
productive and if prescribed, 75% of local population would be excluded from
consideration.

Is there any justiﬁcation for prescribing educational qualiﬁcation? There is
no doubt that the cases which the proposed Gram Nyayalaya would deal with are
not likely to be complicated and the procedure they would be required to follow
in such cases would be simple. Education enlarges vision, broadens outlook,
enriches values and generally developes personality. A programme of training
them into decision making process is to be prescribed. They must be able to weigh
the evidence put before them. For all these reasons, it is desirable that they must
possess some educational qualiﬁcation.

As observed by the study Team on Nyaya Panchayatsl conditions in India
are not the same in every part of the country and these vary considerably from
place to place. While it may be possible to secure law graduates to man these
courts in some parts, it may not be possible to procure persons even with elementary
qualiﬁcation in certain backward areas. Apart from this, villagers tend to mi-
grate to urban areas even with elementary qualiﬁcation.

On an overall consideration, the safe middle course is to prescribe a graduate
degree as a qualiﬁcation failing which those who have obtained Higher Secondary
School Examination Certiﬁcate would be eligible. Educational qualiﬁcation
may be prescribed as a desirable and not as minimum qualiﬁcation. In the matter
of selection of persons from.Seheduled Castes, Scheduled Tribes, backward com-
munities and women,_ educational qualiﬁcation may be dispensed with if adequate
number of persons with educational qualiﬁcation are not available. Persons to be
selected should preferably be within the age group of 30-65.

' Report of the Study Team on Nyaya Panchayats, p. 63.

Disqualiﬁcations.

5.18. The negative criteria may as well be prescribed to keep certain ele-
ments away from the fountain of justice. Conﬂicting and contradictory opinions
expressed in this behalf converged on one point that as lay judges would be en-
joying judicial power of the State and as Constitution of India mandates that judges
should be free from political inﬂuence, active political party workers have to be
excluded from consideration. In order to create conﬁdence in common man in
this age of common man, elite, wealthy persons, rich and big farmers, high pay
bracket service personnel and money-lenders must be excluded from consideration.
Persons convicted of an offence involving moral turpitude, economic offenders,
undischarged insolvents and the like should be excluded from consideration.

The Gram Nyayalaya should be completely free from elitist approach. It
must aim at rendering justice oriented by the approach of a common man. The
lay judges should avoid being overwhelmed by dominant classes of the society.
In an unequal ﬁght between a member of the deprived section of the society and a
well-to-do person, it must have the capacity to stand up against the power of wealth.
The lay Judges should be men of character and integrity. In order to keep the
forum of Gram Nyayalaya free from political skulldrugery, economic overlordship
and fear from anti-social elements, it has become necessary to keep certain persons
with non-too-respectable track record away from the forum. In this age of
common man, justice should not be the preserve of higher castes, dominant
classes, wealthy members of the society, anti-social elements, black marketeers
and hoarders and moneylenders and even higher pay bracket service personnel.
If these are treated as disqualiﬁed to be selected on the panel of lay Judges, there
will be a reasonable assurances that decent respectable common man belonging
to the village community will ﬁnd their place on the panel of lay Judges. It is their
participation which is the dominant theme of this Report.

Number of voluntary social service organisations have come up in the rural
areas. A list of such organisations should be maintained at the district level.
Their assistance may be taken in devising a suitable panel. The success of this
innovation is likely to rest wholly on the selection of lay Judges. With right sort
of persons the new forum will inspire immense conﬁdence and guarantee its suc-

CCSS.

5.19. To articulate the approach of the Gram Nyayalaya both to the subject

Training 0f,1ay matter of litigation and the litigants as well as the method of disposal of causes
Judges '° '""''"''"° and controversies, it is absolutely necessary that initial training should be imparted

their approach.

not only to the Panchayati Raj Judges but also to the members of the panel. All
the three of them should be imparted basic training in creating a new atmosphere
in the forum where all formal technical approach must be eschewed. A voluntary
conciliatory effort should start the proceedings and all attempts must be made to
narrow down the differences between the parties. Every attempt must be made
to resolve the dispute by conciliation and consensus. The Panchayati Raj Judges
should assist in imparting information about the relevant point of law, social
justice approach, non-formal disposal of causes and vdeprofessionalised atmos-
phere. Members of the panel should be imparted training in decision making
process free from prejudices of caste, community, colour, sex or religion. They
must be acquainted with fundamental approach to justice, namely, that the weak
and lessfortunate should not be the victims of class exploitation. The training
may extend to a period of three months. A re-orientation course about the change
in pattern of law, sociology of law, object and purpose behind justice system would
be of immense assistance to the members of the proposed forum.

The Law Commission, in its Fifty-ninth Report (1974), stressed that in dealing
with disputes concerning the family, the court ought to adopt an approach radi-
cally different from that adopted in ordinary civil proceedings and that it should
make reasonable efforts at settlements before the commencement of the trial. Ac-
cordingly, the Code of Civil Procedure was amended in 1976 when provision was
made for a special procedure to be adopted in suits or proceedings relating to matters
concerning the family, vide Order XXXII-A. Rule 3 of this order provides that
the court will make an 'endeavour to assist the parties in arriving at a settlement
in family disputes speciﬁed therein and rule 4 provides that the court may secure
assistance of a welfare expert. However, the experience has shown that not much
use has been made of this conciliation procedure except in the State of Himachal

Pradeshl. In this context, it is worthwhile to take notice of the enactment of
the Family Courts Act which provides for courts with different orientation to func-
tion in a different environment so that a conciliatory approach with a view to re-
solving disputes is effectively adopted. The atmosphere in such a court at the con-
ciliation stage, will be just informal and the procedure will not be governed by any
rigid rules. This approach will have to be adopted by the Gram Nyayalaya as the
Village Community is also like a family which is to' be preserved by not straight-
way resorting to adversary approach. When we visited Jaipur, we had the oppor-
tunity of holding discussions at length with the Presiding Judge of the ﬁrst family
court, and perhaps the only (so far), established in the country. His experience
has been that he could resolve various disputes at mediatory level. Wherever he
could not success at modiatory level, he dealt with them at adversary level in the
presence of welfare experts and other socially oriented members of the society.
Further, wherever we went, we noticed that the system of Lok Adalats had gained
momentum. As a matter of fact, initially there was some confusion in the minds
of the participants regarding the difference between Lok Adalats and the forum
proposed by us. We had to explain that the Lok Adalats function only upto modia- '
tory level whereas the forum proposed by us would also take over at adversary
level like any other court. We feel that the people, in general, are in fhvour of concilia-
tory approach at the initial stages. As such, we strongly recommend that the approach
of Gram Nyayalaya should be modiatory at the initial stages except in regular
criminal proceedings where save the compoundable offences trial has to be held.
Offence being an injury done to society there is hardly any question of conciliation.

The successful functioning of Gram Nyayalaya would depend upon the ap-
proach of the members of Gram Nyayalaya. Proper training of the members of
Gram Nyayalaya towards cultivating this approach is a must. Such training could
comprise of subjects like method of hearing cases, attempted conciliation and reso-
lution of disputes by compromise and training in the decision-making process. The
lay Judges in particular should be taught that they should conform to the principles
of natural justice. Justice equity and good conscience should guide their deliberations
and decisions. They should also be informed that wherever possible, all endea-
vour should be made at reconciliation between the parties and eradicate the causes
of disputes and thus pave the way for better relationships.

In teleological terms, education is deﬁned as preparation for life, not for earn-
ing a living, while training is understood to have always a vocational purpose. With
particular reference to public service, education is understood to be the general
preparation which a young person receives before entering public employment
or at a later point in the career and directed towards the performance of the duties
assigned to the individuall. Pre-service and inservice training even for higher
qualiﬁed persons have been found to be of considerable importance. In 1973,
President of All India Panchayat Parishad vociferously advocated 'the need for
imparting training to the elected representatives and the functionaries of the Pan-
chayati Raj institutions among other things, on the principles and mechanics of
democratic functioning'3. The programme of training both pre-service and
inservice for Panchayati Raj judges and lay judges is not likely to impose additional
ﬁnancial burden. Panchayati Raj training centres have been started and they are
located in different parts of the country. These centres offer short--term courses
to the members of the Nyaya Panchayat and also to other functionaries of the Pan-
chayati Rajsi It is only necessary to expand these training centres and to provide
adequate facility for adequate training of the lay Judges.

5.20. Gram Nyayalaya is to consist of a Presiding Judge belonging to Pan- The 9,051"; of
chayati Raj Cadre Judges and two lay Judges. In view of this composition, a serious unanimity. '
debate ensued as to whether the two lay Judges by a majority decision can dispose
of the dispute leaving the Presiding Judge in minority with a dissenting opinion.

One view was that the two lay Judges must be assigned the role of assessors as the
term was understood in the Code of Criminal Procedure, 1898, before that insti-
tution was abolished. To recall their role, the opinion of the assessors on questions
of fact was not binding on the trial judge, and he could ignore the same with im-
punity. In the case of a Jury, unanimous or majority decision on questions of

P D llggtailed information supplied by Chief Justice of Himachal Pradesh High Court-Justice
. . ai.

' U.N., 1966, p. 27.
' M.Z. Khan, Proﬁle of a Nyaya Panchayat, (1982). p. 40.
' Ibid.

24
facts was binding on the trial Judge. Jury and assessors were bound to take the
law from the Judge. If the Judge considers the unanimous or majority decision
of the Jury unreasonable or perverse, it was incumbent upon him to give reasons

and refer the case to the High Court for an appropriate order. It was not open
to the.Judge to overrule or ignore the majority or unanimous decision of the Jury.

The institution of assessors was a butt of ridicule. lt served no purpose except-

that it had a facade of participatory justice and it was a shadow without substance
and substance without significance. Keeping this historical background in view,
would it be wise to repeat the experience of assessors? The answer is in the nega-
tive. The situation would not be improved by reintroducing the Jury system.
In order to make participatory justice effective and meaningful, a beginning has to
be somewhere made. The Gram Nyayalaya is a step in that direction. In view

of the fact that disputes coming before Gram Nyayalaya' will be simple, uncompli---

cated and not involving complex questions of law, it is better to generate conﬁ-
dence of the society in lay participation in the administration ofjustice. Only one
safeguard need be provided. In the matter of law, the Presiding Judge will give
necessary directions to the two lay Judges. But in the matter of adjudication and
decision of disputes, in the absence of a unanimous decision, a majority decision
even if composed of two lay Judges will be the decision of the Nyayalaya. Any
other view would again render the position of lay Judges ineffective and the attempt
at introducing participatory justice will receive a set back. Viewed from this
angle, the other extreme view that the two lay Judges alone should be entitled to
adjudicate upon the dispute and the Presiding Judge will give them guidance
must be rejected on the ground that it would run counter to the whole concept of
Gram Nyayalaya. As soon as the hearing is over, the three Judges should deli-'
berate and try to arrive at a unanimous decision. The Presiding Judge should
give guidance in the matter of law and decision making process. This novel ex-
periment ensures interaction between a legally trained mind and people of sound
commonsense duly informed in ways of the world and conversant with local con-
ditions, traditions, beliefs and approach to local disputes. Nothing should be done
to impair the relative equality among the three Judges composing the court. The
lay Judges should not be belittled in any way'. People's faith must be generated so
as to induce their acceptability. Therefore, while providing that it would be
the primary duty of the Panchayati Raj Judges, who would be presiding over the

Gram Nyayalaya to give effective guidance to the two lay judges on questions.

of law that may arise in the course of proceeding and may 'have to be dealt with the
for resolving the disputes, in the matter of decision, the majority view in the absence
of an unanimous decision will be the decision of the court.

CHAPTER VI

CRITICAL EXAMINATION ON THE QUESTION OF JURISDICTION, I
POWERS ETC.

6.]. Commissions and Committees have at regular intervals recommenced
introduction or rejuvenation of institution providing for participatory justice till
now commonly described as Nyaya Panchayat. However, having shown very
serious consideration for Nyaya Panchayat, every report of the Commission as
well as of a Committee has been chary of conferring substantial jurisdiction on the
institution of Nyaya Panchayatl. Chapter 43 of the Fourteenth Report of the
Law Commission has extensively set out jurisdiction conferred by various State
statutes on a Nyaya Panchayat. Civil jurisdiction of a Nyaya Panchayat_'varied
between pecuniary limits of Rs. 25 to Rs. 50. That Law Commission after review
of the statutes recommended a maximum limit of pecuniary jurisdiction of Rs. 200
for Rs. 250. It further advocated that if any particular Nyaya Panchayat has proved
to be efficient, its jurisdiction may be enlarged to Rs. 300 with the approval of the
High Court. In regard to criminal matters, the ﬁrst Law Commission did not
recommend empowering the Nyaya Panchayat to impose substantive sentence or
any sentence in default of payment of fine. The jurisdiction in this behalf was
restri_cted to inflicting punishment by way of ﬁne not exceeding Rs. 50.

Diverse opinions were expressed in the matter of conferment of civil and
criminal jurisdiction on the proposed Gram Nyayalaya. There was visible hesi-
tation in favour of conferring unlimited pecuniary jurisdiction. There was also
hesitation in conferring jurisdiction in criminal matters to impose substantive sen-
tcnce. The whole approach appears to be a hangover of the past. In the process
what is overlooked by the participants in the debate is that the-forum of Gram
Nyayalaya has an entirely different complextion than the traditional panchyats in
that it has as its Presiding Judge, a legally trained person, who would otherwise
be competent to man any court in subordinate judiciary below the district court.
This innovative features must inform the mind of the Commission in devising wider
and larger jurisdiction rejecting the hangover of the bygone days.

The local geographical jurisdiction of a Gram Nyayalaya should be conﬁned
to the Taluka/Tehsil for which it is set up. There shall be a Gram Nyayalaya with
an ofﬁce at the Taluka/Tehsil level and this Gram Nyayalaya will have jurisdic-
tion over all villages falling within the Taluka/Tehsil. If the number of disputes
coming before the Gram Nyayalaya set up for a Taluka/Tehsil are not suﬂicient
to keep it engaged full-time, the State Government with the approval of the High
Court may enlarge the jurisdiction of a Gram Nyayalaya to extend over more than
one Tehsil.

A Gram Nyayalaya operating from the headquarter of a Taluka/Tehsil would
be better equipped to deal with effectively and expeditiously disputes arising in any
of the villages comprised in that Taluka/Tehsil. In devising a Gram Nyayalaya
for each Taluka/Tehsil, the Commission has kept in View that ordinarily villages
comprised in a Taluka/Tehsil will have common traditions and customs, neigh-
bourhood information and nuances of local dialect. Setting up of a Gram Nyayalaya
at Taluka/Tehsil level will not result in multiplication of courts because even at
present mostly the lowest level court such as Munsif/Civil Judge (Jr. Division) is
set up at Taluka/Tehsil level. The format is that a group of villages form a Taluka/
Tehsil. A number of Taluka/Tehsils form a district. And the State is divided
into districts. The pyramidic court structure provides for a base level court, with
intermediate district courts and the High Court at the apex. At present there
is' a court of Munsif Magistrate/Civil Judge (Jr. Division), Judicial Magistrate, First
Class at almost every Taluka/Tehsil level. With the introduction of Gram
Nyayalaya,' the work in the court of Munsif Magistrate will be considerably reduced.
Depending upon the number of villages in a Taluka, some present day base level
courts may suffer total erosion of their work. This is a relevant factor in working
out cost benefit ratio. A Gram Nyayalaya at Taluka/Tehsil level, according to
the view of the Commission, be expected to visit as far as possible the sujqjegt-piatter
J .'d'LCI.FoI1rIeenfI;i Reptgrﬁ C8l(i)apter :3, para 45-Civil jurisdiIg1hB;.vrp}9,ﬂ§.i250,;%§HC!U§
UFIS ICUOII U [0 8 116 O S. ' It cam . .. (I . 31' A.
Pecuniary Iimiioof Rs. 250 and in criminillm):1tters,ﬁn::f '('yE%"'B'5'{b ' 3 ?S;"P°' J " '

25;,

Territorial
Jurisdiction.

Civil Jurisdiction.

of the dispute, place where it has arisen or the spot which is a subject matter of the
dispute such as in the case of a dispute as to existence of farm roads, water chan-
nels, passages of air and light etc. The approach of the Commission is that justice
must be made available at the door of the rural population, an idea! which was
envisioned by the ﬁrst Law Commission when it observed that : 'the panchayat
courts alone can solve the problem of bringingjustice to the door of the villagers."
The present Report is an attempt to translate this ideal into reality. Accordingly,
the Commission is of the view that :1 Grain Nyayalaya should be set up at the head-
quarter of Taluka/Tehsil having jurisdiction over all villages comprised within that
Taluka/Tehsil.

The participatory forum is being devised for the beneﬁt of the rural community.
Its civil jurisdiction comprises various types of disputes at village level. The
beneﬁt of this new experiment should be made available to rural community. It
was, therefore, proposed that the Gram Nyayalaya will have territarial jurisdiction
over villages comprised in a Taluka/Tehsil for which it is set up. This approach
may need deﬁnition of what should be called a 'village'. Conﬁrmed votaries of
participatory justice did not want to conﬁne its experiment in the ﬁrst instance to
villages. Their approach was that the Commission should identify and specify
the nature of disputes and irrespective of the fact that where they have arisen such
as rural, urban or metropolitan areas, participatory forum must be set up for reso-
Iution of such disputes. Undoubtedly, it is a good idea, but when a deﬁnite de-
parture is being made from this existing system, we may tread slowly and cautious-
ly, both of which are of course negative factors. To make the experiment precise
and efﬁcacious in the ﬁrst instance, this new forum should be made available to the
village community. It should not be forgotton that 80% of the Indian population
resides in villages. Therefore, a precise deﬁnition will have to be devised of a 'village'.
The briefest deﬁnition that can be considered appropriate is 'village is a unit of
administration for which no municipality is set up.' That would accurately deﬁne
the area to be brought within the territorial jurisdiction of the proposed Gram
Nyayalaya.

6.2. The expression 'jurisdiction' of a court connotes geographical jurisdiction,
civil jurisdiction and criminal jurisdiction. The question of the scope of civil juris-
diction is not easy of solution. The past heavily hangs upon the present and blurs
the vision of the future, pointed out hereinbefore, till 1958 pecuniary jurisdiction
of Nyaya Panchayat in civil matters oscillated from Rs. 25 to Rs. 50 and in rare
cases to Rs. 200. Panchayats, if proved efﬁcient, were to be conferred jurisdiction
upto the pecuniary limit of Rs. 500. I The fall in the_purcha_se power of the rupee
coupled with enormous rise in l.l'lC_pl'lCe of co_inrnod_ities and immovable pi operties,
one shudders at the idea of conferring a jurisdiction involving civil dispute where the
value of the subject matter would be Rs. 250. It would be a mockery of the much
trumpeted new forum. Therefore, the past approach has to be rejected as having
become utterly irrelevant. But the question that need be posed iswhether ceiling
in the matter of pecuniary jurisdiction is at all a relevant consideration when a new
forum is devised? Various States have enlarg_ed_th_e jurisdiction of Munsif/Civil
Judge (Jr. Division) to Rs. 20,000. Such wide jurisdiction can be conferred on the
Gram Nyayalaya because among the personnel manning it would be a_ man of the
level of Munsif/Civil Judge (Jr. Division). The approach'ot'_the Commission is that
a time has come to reshape the approach as to pecuniary jurisdic_tion. The value of
the subject matter of a dispute would have hardly any co-relation to the capacity
of a person to deal with it judicially. Money value is misleading. Real value of a
subject is what the claimant attaches to it. A poorman may have a high value for an
ordinary thing and would ﬁght for it. The_we_ll--to-do may ignore it. It IS highly
anomalous to assert that capacity to deal with judicially is related to money value.
The Commission has not been able to ﬁnd any co-relation between the pecuniary
value of the subject matter of a dispute and the capacity of the Judge to deal with it.
A lay arbitrator chosen by the parties can deal with subject matter valued at any
amount. Therefore, while devising a new forum, it is worthwhile to break this tenu-
ous and unscientiﬁc connection between the pecuniary value of the subject matter
of dispute and the capacity of the person to deal with it.

The real co-relation should be established keeping in View the nature of the
dispute and the capacity of the person charged with a duty to resolve such dispute.
In para 2.7 of the working paper, the Commission has set out broad classiﬁcation
of the nature of disputes arising in rural areas. Classiﬁcation and identiﬁcation of

Fourteenth Report, Vol. II, Chapter 43, para 21, p. 909.

disputes arising in villages was done by a cursory examination of the institution of
cases in Taluka/Tehsil courts variously described as court of Munsif/Civil Judge
(Jr. Division). A glance at the head of each dispute therein set out would clearly
reveal that the pecuniary value of the dispute is hardly relevant. How would one
value a boundary dispute or a minor encroachment ? How would_one value dispute
as to entries in revenue records? Looking to the nature of disputes in the context
ofjurisdiction to resolve/adjudicate it by a Gram Nyayalaya, the Commission invi-
ted opinion from various sources on the question whether pecuniary ceiling should be
imposed in the matter of civil jurisdiction to be conferred on Gram Nyayalaya.

As in all other aspects, opinion varied from extremely conservative to totally
radical. Those who are advocates of status quo expressed an opinion that it would
be wholly risky to conferjurisdiction with a pecuniary ceiling of Rs. 5,000 on the Gram
Nyayalaya. On the other hand, there was a body of opinion that the ceiling of
pecuniary jurisdiction should be done away with. The centrist approach was that
pecuniary jurisdiction should be that high as is at present conferred in a given
State on the court of a Munsif/Civil Judge (Jr. Division).

Between these two extremes, the Commission had to ﬁnd a viable medium but
referable to some known principles. Careful consideration was accorded to all the
rival contentions, apprehensions and reservations. The Commission is not
convinced that capacity to resolve a dispute is conditioned by the market value of the
subject matter of dispute. That approach has outlived its utility. The Commission
is of the opinion that jurisdiction must be referable to subject matter of the dispute
and not to its pecuniary value. Thus there shall be no ceiling in the matter ofpecuniary
jurisdiction ofthe Gram Nyayalaya.

The heads of dispute set out in para 2 .7 of the working paper have been generally
approved by all the participants as would be falling within the purview of Gram
Nyayalaya. Some legal academics raised a doubt that land and revenue jurisdiction
being subject matter comprised in the State List, Parliament will have no legislative
capacity to enact such a legislation. This will be presently dealt with hereafter.

Votaries of Gram Nyayalaya desired an extension of jurisdiction under the
following heads 2
l. Non-payment of wages and violation of Minimum Wages Act;
. Money suits either arising from trade transaction or money lending;
Disputes arising out of the partnership in cultivation of land;
Disputes as to the use of forest produce by local inhabitants;

Complaints of harassment against local oﬂicials belonging to police;
revenue, forest, medical and transport departments;

. Disputes arising from the Bonded Labour System (Abolition) Act, 1976
and the Protection of Civil Rights Act, 1955.

0' .V':""I~*"\'

Looking to the heads of disputes herein indicated, they can conveniently be
brought within the jurisdiction of the Gram Nyayalaya. Therefore, it is recommended
that over and above the heads of jurisdiction in para 2.7, the aforementioned ﬁve
heads be included and be brought within the jurisdiction of Gram Nyayalaya. The
Commission would favour conferment of civil jurisdiction on Gram Nyayalaya in
respect of disputes covered by the subject matter herein delineated :-

1. Civil Disputes :
Disputes arising out of implementation of agrarian reforms and allied statutes----

(i) Tenancies-protected and concealed and contested.

(ii) Boundary disputes and encroachment.

(iii) Right to purchase.

(iv) Use of common pasture.

(v) Entries in revenue records.

(vi) Regulation and timing of taking water from irrigation channel,

(vii) Disputes as to assessment.

ll. Property Disputes :
(i) Village and farm houses (Possession).
(ii) Sehan.

(iii) Easements : Right of way for men, cart and cattle to ﬁelds and courtyards'
(iv) Water channels.
(v) Right to draw water from a well or tubewell.

III. Family Disputes :
(i) Marriage.
(ii) Divorce.
(iii) Custody of children.
(iv) Inheritance and succession-share in property.
(1) Maintenance.

IV. Other Disputes :
(i) Non-payment of wages and violation of Minimum Wages Act.
(ii) Money suits eitltcr arising from trade transaction or money lending.
(z'ii)'Disputes arising out of the pai'tnr.-rsliip in cultivation of land.
(iv) Disputes as to the use of forest prcduce by local inhabitants.

(v) Complaints of harassment against loc:-.1 ofiicials belonging to police, revenue,
forest, medical and transport department.

(vi) Disputes arising from the Bonded Labour System (Abolition) Act, 1976
and the Protection of Civil Rights Act, i955.

criminal _,u,isdic_ 6. 3. The very suggestion of confermeeit of criminal jurisdiction upon Gram

lion. Nyayalaya has evoked in some quarters strong resentment and coufrantation. Avoid-
ing repetition, it must be stated that this again is a hangover of the past. When
Nyaya Panchayat was exclusively manned by the elected representatives of village
community, i.e., all lay judges, there was serious reservation in the matter of confer-
ment of criminal jurisdiction on such untrained persons. Extreme views were pro-
pounded in the Workshops as well as in written memoranda submitted to the Commis-
sion in the matter of conferment of criminal jurisdiction on Gram Nyayalaya.
At the one end of the spectrum, there were votaries in favour of total denial of cri-
minal jurisdiction being conferred on Gram Nyayalaya. Some advocated that
limited jurisdiction to try cases in which upon conviction, a sentence of ﬁne, say not
exceeding Rs. 200, may be conferred. They were in favour of adopting the approval
of the Study Team on Nyaya Panchayat.' Some participants canvassed the View
that the Gram Nyayalaya should have the power to try offences in which substantive
sentences extending upto 7 years can i':C imposed upon the accused.

Article 2| of the Constitution provides that "No person shell be deprived of
his life or personal liberty except. according to the procedure established by law."
Article 22 provides that "every person who is arrested or detained in custody, shall
be produced before the nearest Magistrate within a period of 24 hours of such arrest".
Our Constitution further guarantees that the person arrested or detained is entitled
to consult and be defended by a legal practitioner of his choice. . ,,i,,m,»,;j

A criminal convection is likely to result in the.deprivatopd;'pdfs'8n'éfI1lib'éi'§j/
and as provided in article 2i "any procedure by which a'pétsoit','c Ii

. . .. A .... ',5é').i.3"="f%!7.¢?.i"
his personal liberty must be in tune with the. recei gttertd-'6? decisions. 0' iﬁengih
, 1') (1).

from Menaka Gandhi V. Union of India? '2ti'1d"'i'}4'."i . Rid)-"v.i"UIi7nl7i"5y"Widi 5i
In the past. minimal criminal jurisdiction was conferred on Nygy ,g_Pprg9l'qaya_ti,
under which it _c . ul_d at the highest 'impose; a ﬁne Rs.._§0 That 'sh_ou_5d no deter
the present 'Cb'fnii{l§'sf8h' r'oi11"<§):<itin ri|iiig{t'he' 'C]'ii[e'stii>'r'irci é--ii3J'iiii"21n'clfin' 'an f_tfs'(i(aéiiﬁca.
ti0nS_ l,~<..;.:s~;~«.~.: -.::~; n:_.~i;1r,~rim l.-M; l.-9':1.!<rir;--.-'-:'.»m.r:3é ti;
A conviction for an oﬂence att-aei1e's'ia--'stig'n'1zfi~'fo 'ti'iE§1'érlile1*Ld6i':I'WE§5en'\\ilIhen he
suffers the sentence, and repays his debt to the soc1ety,:,,tlm-_st;grr;a_igggggt washed out

but haunts him and his family for a long time. Tht;r,¢f9,f,C, 51 ¥j;;}>}q e r, d that a
legally trained experienced person would alonefbeicoIi'tp3tent'%d1iir§/1'%i(Zqc se and
record conviction and impose sentence. It is too fsteH<5t1s".":1"rlt'a't'tér',.'ltivklﬁlsisaid, to be
left to untrainedrlazyJD1;rsons:;»'IUXd]{1/11»bte;qgIl{s;li;tiir3 Isrargatﬁmﬁﬁsei1adus1:ﬂn$lderat1on.
Whatis the present situation'. unsi agl§i{I_' H _ ,t e" gst; , (gap t present
try cases which are triable by him as provided ingiiie Code of dF 1al igrocedure

_g g j_ _ __,,,,___ ,_,__ ...,.__.. ...____ ._.-..,.._;_;:oIuqziLl,,quuq.u1'1 __li
1 Report of the Study Team on N_wi_va Pt(rgf;I;g){1;j,((;k1_§pt§r;,])$,,{ p_ar,q;'jl§,h.p. 5§Q,'j,,'\y (W
2 AIR 1978 sc 597. Him,' (M
a AIR 1982 Sc 710. R " '

1973. A Munsif Magistrate of the First Class can impose sentence not exceeding 3
years or of ﬁne not exceeding Rs. 5,000 or both. (See Section 29(2) of that Code).
Now if a Munsif Magistrate alone can try cases with power to impose substantive
sentence not exceeding three years, the Commission sees no justification for whittling
down this jurisdiction only because the presiding Panchayati Raj Judge who is equal,
if -not more competent than a Munsif Magistrate, will have two lay judges and three
of them would constitute the Gram Nyayalaya. Therefore, shedding the apprehen-

' sions of the past, and keeping in view the mandate of article 21 and bearing in mind
the fact that the Gram Nyayalaya is to be manned amongst others by a Pan-
chayati Raj Judge, who would be of the level of Munsif Magistrate, the Commission
is of the ﬁrm view that the Gram Nyayalaya must have jurisdicton to try all offences
which can be tried under the Code of Criminal Procedure, 1973, by the Judicial
Magistrate First Class.

Is the Commission charting a hazardous course in enlarging criminal jurisdic-
tion of the Gram Nyayalaya? Is it likely to be abused? Is the village community
being exposed to grave risk of injustice? The answer unquestionably is in the negative.
The Presiding Officer equipped with legal training would provide an effective guidance"
to the lay judges constituting the Court along with him. The trial will be, to be
presently mentioned, according to the procedure prescribed in the Code of Criminal
Procedure, 1973, for trial of summons cases and warrant cases as the case may be.
That ensures fair procedure. The Panchyati Raj Judge ensures basic knowledge
of criminal law to the same extent available at present in the person of Munsif Magis-
trate. He will ensure fundamentals of criminal trial such as the presumption of
innocence, the burden of proof and the beneﬁt of doubt. The two lay judges would
widen the vision of the presiding judge in the matter of the behaviour, truthfulness
or waywardness of witnesses and complainants coming from rural areas. There
will thus be inter-action of technocrat on one hand and experienced people in the ways
of village life, on the other both of which would produce unquestionably sound
decision. Any comparison with the Nyaya Panchayat in the past in this background
is utterly unjustiﬁed.

Further in the trial of criminal cases, the law plays a secondary role. The
emphasis is on behavioural pattern, how in a given situation a man of common sense
would act, whether the narration of a witness is truthful or he is prevaricating and
while dcterminihg the quantum of sentence, the circumstances both mitigating or
aggravating the crime, can be better appreciated by a body composed of technocrat
and lay persons. Therefore, having regard to all the aspects of the matter, the
Commission is of the opinion that the Gram Nyayalaya will have jurisdiction to try
all offences at present triable by the Judicial Magistrate, First Class under the Code of
criminal Procedure, 1973, as also to impose the sentence whicha Judicial Magis-
trate of First Class is competent to impose.

6.4. Under heading III of para 2.7, it is suggested that the family disputes _Matrimonig1
such as (i) marriage; (ii) divorce; (iii) custody of children; (iv) inheritance and succes- Jurisdiction.
sion of property; (v) maintenance, arising from rural areas should be within the
jinisdiction of the Gram Nyayalaya.

It is now suggested that Parliament has enacted lfamily Courts Act, 1984,
and' it has been put into operation. It was said that the said Act, having come into
form, an exclusive forum is created_for certain types of cases speciﬁed therein and
there is likelihood of a conﬂict of jurisdiction if the Commission persists with the
proposals speciﬁed in the Working Paper.

Undoubtedly; Family Courts Act, 1984, 'has been enacted and brought into
operation. To the knowledge of the Commission only one Family Court has come
into existence, at Jaipur in Rajasthan manned by a male judge. Even disputes
relating -to marriage, divorce, and custody of children have a distinct local ﬂavour.
Urban elite couples have their own disputesrelatvng to marriage or divorce and which
has Tittle or nothing in common with rural poor illiterate couples belonging to back-
ward communities . In fact, customary divorce is admissible amongst some of the
tribes. Therefore, though undoubtedly _the Family Cquljts Act, 1984, has been
and has been brought into operation, the_ Commission is of the considered
oymm that in the matte; of rnatnmomal despites arising from rural areas, the
Gramﬁyayalaya just have jurisdiction to deal with the same. The forms of marriage
and ,.di,vo,.ce.--and consequent custody 'of children amongst Adivasis and dilferent

0 backward communities are traditional in cha1'aCteI',_ andthe knowledge of tradition
is very relevant in resolution of such disputes. To illustrate, when the-Commission

_. .g5.mm4)44iMotI.JaCA-3

Revenue
tion.

Seat of hearing.

Jurisdic- ,

visited inhabited by members of scheduled tribe known as Mundas in the interior of
Bihar State. the leaders of Munda tribe were critical of the judgement of the Sup-
reme Court in N.E. Ham v. Smt. Jahan Ara Jaipal Singhl' in which the Court
held that a non-Munda in marrying a member of Munda tribe becomes a member of
the tribe. The leaders asserted that since hoary past no one can become member
of Munda tribe except by birth. For want of ﬁnance the tribe did not appear before
the Supreme Court. A Gram Nyayalaya manned by a trained Judge and two lay
Judges, which may preferably included woman lay judges would be better suited
to deal with matrimonial disputes arising in rural areas.

The suggestion that these disputes are likely to be complicated and may involve
complex questions of personal law and would be beyond the reach and understan-
ding of the Gram Nyayalaya, must be dismissed as wholly unwarranted. The caste
panchayats effectively dealt with divorce or re-unions or maintenance and custody
of children. It is not for a moment suggested that the society must move backward
to the tyranny of caste panch but this justiﬁes a belief that Gram Nyayalaya would be
better suited than even the Family Courts to deal with matrimonial problems arising
from rural areas. Therefore, the jurisdiction in matrimonial matters set out in
para 6 . 2., must be conferred on Gram Nyayalaya.

6. 5. A little while back, a question was posed that as topics of land and land
revenue fall within Entry 18 of the State List, Parliament is incompetent to enact a
legislation conferring revenue jurisdiction on the projoosed Gram Nyayalaya. Apart
from this constitutional conundrum, some participants voiced serious apprehensions
about the complicated questions of law that may arise under the agrarian reforms
laws, under revenue laws, under irrigation laws and like statues, and voiced an
apprehension about eﬂicacy of Gram Nyayalaya to deal with them. It was also
stated that a central legislation would tread upon the powers of the States and Centr:-
State relations would be further strained. An alleged ugly feature of the village
life brought to the notice of the Commission by numerous speakers was about
the role of village revenue ofﬁcer variously described as Patwari, Lekhpal, Kulkarni,
Talati and the like who maintain basic revenue records and who are alleged to have
perverted the entire process of agrarian reforms by ihanupulating entries in Jamabandh
and Khasra Girdwari records. The unending list of grievances in this behalf
is horrendous. It was stated that Gram Nyayalaya would be wholly ill-equipped to
deal with these oﬁicers and to repairgthe situation by removing their tyranny.

The Commission remains unimpressed by these apprehensions. A legislation
under Entry 11A in the Concurrent List : " Administration of Justice, constitution
and organisation of all courts, except the Supreme Court and the High Courts"
would be an eﬂ"ect_ive_ans_wer. The Commission proposes devising a new forum for
resolution and adjudication of disputes arising under certain speciﬁed heads and
emanating from rural areas. The Gram Nyayalaya would be a body for adminis-
tration of justice and _a legislation for the same would squa'rly fall under Entry llA.
Once that aspect is disposed of, the Gram Nyayalaya, would be the most effective
instrument to control and keep a vigilant supervision over the local revenue oﬂicials
including the one which makes entries in revenue records. At present, the disputed
entry can be questioned before the.Tehsild_ar, or Mamlatdar and the process is unen-
ding. If this very disputed entry is questioned before the Gram Nyayalaya, it can
be effectively dealt Vl'lth' at the spot and in a summary manner and by participation
of lay judges constituting the court. presumably aware of the machinations and
mischief that can be perpetrated in this behalf. It may be stated that there was near
consensus amongst those who 'responded to the Working Paper and participated
in workshops that the jurisdiction under revenue matters as indicated in para 6.2
should be conferred on Gram Nyayalaya. '

6.6. The time-honoured tradition is that a Court holds its sitting at a pre-deter-
mined place. Anyone in search of justice has to appear at the seat of Court and move
it in the manner prescribed by the law governing the procedure. This runs counter
to the concept of justice on the door step of the seekers. In this traditional approach,
generally the Judge does not visit either the site of dispute or the place where the
dispute has arisen which he has to resolve. Whenever the court desires to acquaint
itself with the local situation, the common practice is to appoint a Commissioner
either a Court Oﬁicer or a practising lawyer or occasionally atechnically qualiﬁed
person--who visits the site after notice to the parties and then draws up a sketch

'. AIR 1972 S.C. 1840'

with explanatory notes attached to it. But this time-honoured approach has always
resulted in perpetuation of the disputes distracting the attempt of resolving the
main dispute between the parties. As soon as the Commissioner ﬁles his report,
both the parties are invited to ﬁle their objections and one or the other party is bound
to object both to the report, the sketch and the explanatory notes. The objections
are set down for regular hearing and end in an order of the Court. Thereafter, the
cases are not unknown when the party challenging the court's order approaches the
High Court by way of revision petition u/s 115 of the Code of Civil Procedure. On
rare occasions, the jurisdiction of Supreme Court is also involved in this behalf.
A number of civil disputes gets side railed by the controversy as to in what manner
the court should have access to the ﬁrst-hand and direct knowledge of the site of the
dispute. If the Judge visits the site of the dispute, and this comes to the notice of
the superior courts, the judge would be accused of bias and it is believed that instead
of remaining an impartial and unbiased judge, he has become partisan in his attitude.

It cannot be gainsaid that in a number of simple trivial disputes, a visit to the
site offers a solution. In a number of cases emanating from rural areas and reaching
the courts, the dispute centres round a road or passage to the house or ﬁeld and to be
used by men, " cart and cattle. These disputes are embroiled in technical rules, and
complex legal formulations involving foreign decisions which have modulated'the
law. Ascertainment of easement by prescription, easement of necessity, presumed
lost grant and all these technical rules thwart the resolution of such a simple dispute.
If the presiding judge instead of getting embroiled in this exercise visits the site in
presence of the parties,- the solution would appear on the spot. Same is true of dispu-
tes as to water channels, traditional as well as State prescribed. It is equally true
of the disputes as to disturbance of passage of air and light. Now if the orches-
trated atmosphere of the court is substituted by the assembling of the court at the site
in the presence of local people, there is greater chance of the truth emerging because
one shudders at the idea of uttering untruth in the presence of or in the vicinity
of ones own kith and kin and village community of which he is a member. Accor-
dingly, in the Working Paper, a suggestion was put forward for consideration whether
the Gram Nyayalaya should hold sitting whenever convenient and conducive to the
resolution of dispute, by keeping in view the nature of the dispute, at the site of the
dispute or in the vicinity of the subject matter of the dispute.

One feature of the debate in various centres really struck our face. In every centre
» when a departure from the present state court system was voiced, three discernible
views surfaced in the debate. The ﬁrst, and what can be described without any dis-
paraging tone, is what should be styled as conservative, traditional or status-quoist.
In the present context, the suggestion was that the court has already been devalued
and if it goes on moving from place to place or village to village like a mobile dis-
pensary, its dignity and credibility would be further eroded. The second view which
can be appropriately styled as the centrist view was that while the court ordinarily
should continue to sit at its pre-determined seat, where the situation, the site and the
environment of the subject matter of the dispute warrants that it would be conducive
to the disposal of the dispute, the court should not hesitate to visit the place after
notice to and in the presence of the parties. The third view which can be labelled as
left of the centre, was that it is time to translate the constitutional mandate of taking
justice to the door steps of the people. Expanding the last mentioned view, it was said
that for beneﬁt of the consumers of justice, the mechanism for rendering justice
on the analogy of making commodity available at the doorstep, should be made
available also. As purchasers of commodity have not to roam in search of commo-
dity, so also the consumers of justice must be spared the same. Its service must be
available at the door steps. Approaching the matter from the constitutional angle,
it was pointed out that article 39A mandates that the State must "ensure that oppor-
tunities for securing justice are not denied to any citizen by reason of economic or
other disabilities." It is, therefore, said that if the justice is taken to the door steps
of the people, it would result to some extent in the fulﬁlment of the objects under-
lying article 39A. --

Now when a new forum is to be established, it must have an oﬁice. It should be
called "Gram Nyayalaya Karyalaya". It must be set up at the headquarters of Taluka/
Tehsil. Ordinary requirements of staff, oﬂice, books stationery etc. must be pro-
vided at the office. The Presiding Judge must be available at this olﬁce. The oﬂice
will provide the nucleus for the activities of the Gram Nyayalaya. It must be a self-
sustaining unit, not dependent for any of its requirements on the allied oﬂices at
taluka/tehsil level. Adequate funds must be provided for its effective functioning.
an/1>(N)441Mon.J&cA--3(a)

Non-application of

certain laws.

Any one having a dispute under any of the heads prescribed under. the juris-
diction of Grain Nyayalaya has to approach in the ﬁrst instance, the office or 'the
Gram Nyayalaya at taluka/tehsil headuarters. On receipt of the complaint to be noted
in the manner to be prescribed, the Presiding Judge, after perusal of the complaint or
the statement of dispute should apply his mind to the question whether the Ny'yala' a
should assemble at the situs of the dispute. Thereafter, he can issue notice to be
'sewed by his own staff without the slightest default, requesting both the parties
and their witnesses to appear at the time and on the (1 ate ﬁxed by the Presiding Judge
of Gram Nyayalaya at the situs. Most disputes coming before the Gram Nyayalaya
can be more satisfactorily disposed of at or near the subject matter of dispute or. in
the village where the dispute has arisen. It is not envisaged that every village must
provide some oﬂice for the holding of its sitting by Gram Nyayalaya. A Government
building including the panchayat house, can be requisitioned for this purpose with-
out any obligation to make any payment for its use. Even in the matter of family
disputes, if the sitting is held in the village either of the husband or the wife, or the
father or the son and if both the parties are in the same village, in that pa icular
village, experience shows that the resolution of the dispute would be easy, e _ tious
and more satisfactory. In cases where the presence at the subject matter of the dispute
is not considered relevant, Gram Nyayalaya must hold its sitting at the ofﬁce of its
headquarters. ' .

6.7. The root cause of the present malaise in disposal of cases in court 'as at
present functioning have been often attributed to long, complex, unending procedu-
res prescribed both in the Code of Civil Procedure, 1908, and in the Code of Criminal
Procedure, 1973, for disposal of civil and criminal cases. WliOSOCVCI' one may try,
it has been found impossible to extricate oneself from stages prescribed in the pro-
cedural laws. A cliche has come into existence that before one can hope to get subs-
tantial justice he should be able to procure processual justice. There is enough direct
evidence on the subject that the court accords more time and spends more energy
in disposing of larger number of processual issues than issues involving disposal of
substantial dispute. Innumerable decisions of the High Courts and the Supreme
Court are on the question of interpretation of the provision of the Code of Civil
Procedure, 1908, and Code of Criminal Procedure, 1973. The Indian Evidence Act,
1872, and the Limitation Act of 1963 have made no small contribution to the present
confusing and confounding situation. The warp and woof of procedural laws are
so inter-twined as to make progress in the course of resolution of a dispute, almost
impossible. Certain procedural orders are 'amenable to appellate jurisdiction (See
Order XLIII, CPC). Where there is no pl'0VlSlOI1 for appeal, section N5 of the Code
of Civil Procedure is resorted to. As if this does not set up suﬂicient insurmountable
road blocks in the pilgrims' progress towards resolution of disputes, the interpre-
tation of article 227 of the Constitution has further accentutated the situation.

The nature of the disputes which would be coming before the Gram Nyayalaya
are, more or less, likely to be simple, uncomplicated, easy of solution and shonid not
be enmeshed in procedural claptrap. If Gram Nyayalaya is to resolve the dispute
about the passage to or discharge of water from a ﬁeld from a nearby irrigation
channel, following the prescribed procedure at evey stage in the Code of Civﬁ
Procedure would have disastrous results. Rain God is not subject to court's jurisdic-
tion and is not likely to obey any injunction. Weather is equally unamenable to oourt's
jurisdiction. New Without urgent relief crops cannot be raised.in a ﬁeld, apart from
personal loss, it is a national loss. To resolve such a disute, putting on shelf the "Code
of Civil Procedure, if the gram Nyayalaya assembles at or near the ﬁeld_to which pas-
'sage for water is in dispute, it can be resolved within _a couple of hours and that too
more satisfactorily. This satisfying result can be achieved without the assistance of
the Code of Civil Procedure. Examination and cross-examination of witnesses, ob-
jections as to the relevancy,form of question,_ leading questions, Sections 91 and 92
of the Evidence Act, all may have to be kept aside for resolving such a simple diipnte

In the past, _all_those_ who have advocated either retention of Nyaya Panchayat
or expansion of its jurisdiction or a different forum permitting participatory justice,

are agreed that this forum should be kept free from the tentacles of Code of Civil'

Procedure. It is recommended that neither the Code of Civil Procedure nor the Evi-
dence Act should apply to the proceedings before Gram Nyayalaya.

6.8. A simple procedure has to be devised. Its speciﬁc stages can be brieﬂy

Pxocedu_1'c in Civil narrated here. Whoever has a complaint or a dispute falling withing the jurisdiction

Proceedings.

of Grain Nyayalaya must go to the oﬂice of the Gram Nyayalaya and ﬁll in asiznljlé

form 'stating the name and address of the complainant, the name and address "dfthe

opponent/respondent, brief statement of the nature of the dispute and how the dipute

emanated. If the person having a grievance can ﬁll in the form, the office of the. Gram Nyayalaya must provide him with a form, and if he is illiterate, he must be assisted by the oﬂice of the Gram Nyayalaya in ﬁlling in the form. The same should be placed before the Presiding Judge within 24 hours. A notice accompanied by a copy of the complaint should be served upon the opposite side. If the dispute brooks no delay, the Gram Nyayalaya will be entitled to pass ex parte interim prohibitory orders to be enforced within one week within which the Nyayalaya must visit the site and then determine in the presence of both sides whether to continue the interim order for a further period or not. For the ﬁnal hearing as stated earlier, the Nyayalaya shall ordinarily meet at the situs of the dispute. Having assembled as herein indicated, it may inform the parties there and then as to the nature of the dispute, brieﬂy hear the witnesses and if the lawyers appear on either side, allow a very brief cross-exa- mination and make a short note of it. If lawyers so think, they may make submis- sions for a period not exceeding 'a few minutes. If possible, the decision must be rendered there and then. Whatever documents are produced, must be accepted. If any extract from the Government records kept at village level are necessary, the * oﬁicer in charge of the village records must be sent advance intimation to remain present with the same and he should be asked to supply the records if the Nyayalaya needs the same. The decision of the Nyayalaya will be governed by the principle of justice, equity and good conscience. -

The Presiding Judge of the Gram Nyayalaya must control the cross-examination of the witnesses and conﬁne it to speciﬁc issues and directly relevant to the point under consideration and should not permit any rambling or ﬁshy examination. In fact, it must be kept as a time bound programme. It will be open to the Gram Nyaya- laya. to accept amdavits in lieu of oral evidence, if the party so chooses to give. It shall not condemn anyone unheard and minimum principles of natural justice shall be observed in the trial of the disputes brought before it. By minimum principles of natural justice is meant that (1) no one shall be condemned unheard; and (2) no one shall be a judge in his own cause. The decision will always be informed by justice, equity and good conscience. At the end of the trial, if the decision is not by consensus between the parties, the Presiding Judge shall draw a brief statement of the dispute, the evidence led, the decision and the reasons in support of the decision. It shall be signed by all the three Judges; In the event of a difference of opinion, the decision of the majority will be binding. On a question of law , the view expressed by the Pre- siding Iudge shall be binding on the lay Judges.

If it appears to the Grain Nyayalaya while conducting the proceedings before it that the case is one which ought to have been tried by a different court and for which it has no jurisdiction, it may make over the same to the District Court having juris- diction for transfer of the same to the court having_ jurisdiction to try the same. Similarly, if some other court has a proceeding before it which ought to be tried by Gram Nyayalaya, the court will forward that proceeding to the District Court having jurisdiction who would transfer it to the Gram Nyayalaya having jurisdiction to deal with the same.

6.9. Upon a receipt of a complaint by an aggrieved person at the ofﬁce of the Constitution 9!' the Gram Nyayalaya at Taluka/Tehsil level, it shall be placed before the Presiding °°""' Judge forthwith, if he is available or as soon as he returns to the headquarter butnot later than 24 hours from the time of its receipt. When the complaint is placed before the Presiding Judge, after acquainting himself with the nature of the disputeand the place where the dispute has arisen, the Presiding Judge sh_a'l select from the Panel already furnished to him two persons residing as far as possible at some distance from the situs of the dispute and_invite them to be the _court for the case. If anyone of them discloses an interest either in the dispute or parties to the dispute on a questioning by the Presiding Judge, he should be discharged from the performance of the duty and in his place some other person form the panel should be selected. Where one of the parties to the dispute is a member of the Scheduled Caste or Scheduled Tribe or a woman, the Presiding Judge should as far as possible try to enlist as one lay Judge either a member of the Scheduled Caste or Scheduled Tribe or _a women. They should also be selected for other disputes but in the aforementioned circumstances ordinarily one of them must be a member of the court: valid charge of bias shall disqualify the member. It would be open to the Presiding Judge to continue the two members so selected even for other cases if they are nototherwise disqualiﬁed. All the three won; constitute the court and all the three would sit as a court. The decisign will bee; by consensus of by a maJ01'1ty-

Procedure in cri-

minal proceedings.

Appearance lawyers.

of 34 6.10. Having regardto article 21 of the Constitution, and further having regard to the conferment of criminal jurisdiction of afairly extensive nature, afair procedure has to be devised for trial of criminal cases by procedure prescribed in the Code of -

Criminal Procedure, 1973, for trial of summons and warrant cases has stood the test of article 21. Lawyers participating in the debate very vehemently stressed that if a bold step of conferring extensive criminal jurisdiction on Gram Nyayalaya is to be taken, a safeguard must be provided that the trial before it shall take place according to the provisions of the Code of Criminal Procedure, 1973. Provisions of the Code of Criminal Procedure, 1973, for trial of offences lean heavily in favour of the accused and more often a real culprit escapes on account of over--emphasis on adherence to procedure. But even with this reservation, as aﬁrst step, itis advisable to retain the procedure prescribed in the Code of Criminal Procedure, 1973, for trial of offences before Gram Nyayalaya. The Evidence Act as such stricto sensu would not apply. Some of its provisions have literally an inbuilt guarantee for miscarriage of justice. An illustration would convey the message in a cogent manner. Ravi Shanker Maharaj, renowned Gandhian' Social worker was carrying on an experiment for improving equality of life in rural areas near Dholka in Gujarat with a view to weaning people away from criminal activities. He had raised a cadre of dedicated social workers. Those who thrived on criminal propensities found the activities of Ravi Shanker Maharaj a hindrance. One of the closest colleagues of Maharaj was murdered. The police appeared on the scene but was not making any headway. In his true Gan- dhian tradition, he went on fast for change of heart. One evening two persons appear- ed before him and confessed having committed murder of the social worker. Ravi Shanker Maharaj heard them and requested them to surrender to the police and per- mit the law to take its own course. Accordingly, the culprits surrendered. Investiga- tion was completed and they were challenged. The case was committed to the Court of Session. In the trial before the Session Judge, Ravi Shanker Maharaj was cited as a witness to prove the extra judicial confession of the culprits as they had retracted their confession. No one, not even the Judge, had any doubt about the truthfulness veracity and credibility of Ravi Shanker Maharaj. He gave his evidence. There was no reason why his evidence should not be accepted. If it were accepted, there would be an iron clad case against the accused. In the cross-examination, the defence counsel did not try to shake the testimony of Ravi Shanker Maharaj. He asked only one ques- tion : whether the police was there near the door of the room when the culprits appeared before him and confessed that they had committed murder. The answer was in the aﬂirmative. The provision of section 25 of the Evidence Act was involved and the evidence of extra-judicial confession was ruled inadmissible. The accused were acquitted. Later on, Ravi Shanker Maharaj said that the system of justice as administered by the British rulers had an inbuilt tendency of promoting injustice. Such illustrations can be multiplied. The Commission is, therefore, of the view that the Evidence Act enacted about a century back stricto sensu should not apply even in the matter of criminal proceedings before the gram Nyayalaya. However, the trial shall be held according to the procedure prescribed in the Code of Criminal Procedure. An attempt, however, should be made to devise still simpler procedure which may stand the test of article 21 of the Constitution.

6.11. There has been near unanimity on the controversial question about ap- pearance of lawyers in proceedings before (irarn Nyayalaya. Most of the statutes dealing with Nyaya Panchayats have unequivocably recommended the exclusion of lawyers in the proceedings before the Nyaya Panchayat. Participants in workshops and those who submitted their views, save lawyers, were unanimously of the opinion that lawyers should not be permitted to appear before Gram Nyayalaya. Commencing from the Fourteenth Report of the Law Commission, all other Reports and Commit- tees dealing with the topic have reaﬂirmed the same view. This Commission wants to introduce a slight departure from the earlier View in this behalf for very weighty reasons.

All the previous Reports of the Commission and the Committees_recommended trivial jurisdiction to be conferred on Nyaya Panchayat. Approach now adopted is to confer fairly wide civil and criminal jurisdiction on Gram Nyayalaya, though the disputes in their nature are bound to be_simple and uncomplicated. Further, lawyers cannot be excluded from appearance in.the_ CI'1l'nlI13.l proceedings in view of the provision contained in article 22 of the Constitution. Any suggestion to that effect would be violativc of the Constitution. The approach should not be to exclude lawyers but it should be to minimise, if not eradicate, th_eir_p_ropensit_y to delay pro- ceedings, formalise the procedure and_ introduce technicalities. It is the cardinal feature of our Constitution that India is to be a society governed by the rule of law.

Of course, law means not only lawyer's law but law which is deﬁned as common sense. One additional reason for making departure in the matter of app :arance of lawyers stems from a further experiment of inducting legally trained persons in the participatory forum. Therefore, the Commission is of the opinion that the parties appearing before Gram Nyayalaya will be entitled to appear through the lawyers of their choice both in civil and criminal proceedings. However, in order to thwart the repetition of the past experience, the appearance will be subject to two speciﬁc conditions, namely, (1) Gram Nyayalaya will have no jurisdiction to adjourn the case for the convenience of the lawyers of the party; and (2) the venue of the hearing shall not be changed to accommodate the lawyer. No adjournment will be given to enable the parties to engage the lawyers. Thus all the parties appearing before the Gram Nyayalaya who are desirous of availing assistance of lawyers should make their arrangements in advance. It would be no argument that as one party did not know whether the other party has engaged a lawyer, the matter should then be ad- joumed to give an opportunity to engage a lawyer. Such an approach must be wholly avoided.

6.12. In order to mitigate any hardship in this behalf, the Commission is of the 1,3,1 ,,id_ opinion that the proposed Legal Services Commission for States and Union terri- tories which may be set up under the proposed National Legal Services Act should assign two lawyers to be attached to each Gram Nyayalaya whose services would be readily available to the parties if they so desire. These lawyers would be independent of party inﬂuence and would assist as Court oﬂicers in disposal of the disputes. As they are attached to the Court, there will be no question of adjournment to suit their convenience. With these safeguards, the Commission favours this retention of parti- cipation in the proceedings by lawyers and, therefore, the parties should be permitted to appear through the lawyers of their choice in proceedings before the Gram Naya- laya.

In the criminal proceedings, the accused would be entitled to appear by a lawyer as a matter of right, but the Gram Nyayalaya will have no jurisdiction to adjourn thecase to suit his convenience or to shift the venue for the convenience of the parties. ' 6.13. The Gram Nyayalaya will have power to call for information from any power to all for source which is considered necessary for the just decision of the dispute brought information, before it. While retaining the adversary format, the Gram Nayayalaya should not be handicapped in rendering just decision in the case by the failure of the parties to bring available material before it. At present the court cannot act suo motu. In order to remove the present handicap, it is desired to empower the Gram Nyayalaya to adopt, as and when necessary, inquisitorial approach, so that no material which can shed light on the issues arising before it in a dispute, would escape its 'attention. The Gram Nyayalaya must always remain conscious of its role that more or less it is desired that it should adjudicate the disputes without the assistance of lawyers. Initially its app- roach must be to bring about reconciliation between the parties by acting almost as a Conciliation Board. But even if it failsto reconcile the parties and has to assume the adjudicatory role, it should not dispose of the dispute by merely saying that the decision is referable to what material is brought before it. It should attempt to ad- judicate dispute satisfactorily and conclusively by having recourse to its power to call for material from any source including government records. The Gram Nyayalaya. will accordingly have power to :

(a) enforce the attendance of any person and examine him on oath;

(b) compel the production of documents and material objects;

(0) issue commissions for the examination of witnesses; if the witness is unable to appear before it on account of physical incapacity; and

(d) do such other things as may be prescribed.

6.14. The proceedings before the Gram Nyayalaya shallbe conducted in the Language.

State language permitting the dialect of the locality to be used. The record of the Gram Nyayalaya shall be maintained in the State language and copies shall be fur- nished to those who desire the same. This approach will ensure that the litigant will understand what is going on in the court. The decision shall be, if not by consent of the parties, recorded in the language of the court. a ' Court fees.

Transport.

Appeal vision.

01' re-

-36 6.15. There was a lively debate whether court fee should be levied in the pro-

' ceedings before the Gram Nyayalaya. In the past, the Minister of Law and Justice of the Government of India was an ardent votary of abolition of court fee. Nothing concrete has been achieved in this direction so far. Even the exercise undertaken by the Conference of Chief Justices, Chief Ministers and Law Ministers held in the year 1985 has not revealed a consensus in this behalf. A number of States stoutly opposed the proposal. Those who are votaries of abolition of court fees contend that court fee is a tax on justice and no civilised society can tax justice. Another view was that an indigent person suffers serious handicap in access to justice by not being able to pay court fees. Keeping aside the wider issue of the justification or otherwise of levy- ing court fee, there was near unanimity with the view expressed by the Commission that in respect of proceedings before Gram Nyayalaya, which will be catering largely to the needs of the rural poor, the levy of thecourt fees would be anachronistic. The approach may not be misinterpreted to suggest that the Commission is against levy of court fees. In fact, the elite and the corporate sector, who use courts for a shadow-boxing in respect of issues which are unreal, heavy court fees should be levied and it must be so high as to make them pay the entire cost of the court estab- lishment. There is nothing new or startling in this suggestion. A begining has already been made in California (U.S.A.) in this behalf. Having regard to the dis- cernible tendency of corporate sector aggrandising court time arguing non-issues, this view will have to be developed later on. However, in the proceedings before the Gram Nyayalaya, looking to the nature of disputes, the class of litigants, the eco- nomic status of the parties ordinarily coming before it, the levy of court fees wouldbe inappropriate . It is the considered view of the Commission that no court fees shall be levied in the proceedings before the Gram Nyayalaya.

6. 16. If the treble objects behind devising a new forum for resolution of disputes at grass-root level, namely, (1) participatory system of justice; and (2) expeditious disposal of disputes; and (3) justice to be taken to the door-step of the people, have to be realised, it is imperative that the Gram Nyayalaya should have easy mobility. Therefore, every attempt to hold court in a formal manner at the headquarter should be thwarted. If there is not to be any laxity in this behalf, it is essential that a trans- port vehicle should be provided to each Gram Nyayalaya. As the approach roads in villages may be either fair-weather roads or not in a very good shape, it is essential that a Jeep should be provided to the Presiding Judge of the Gram Nyayalaya. It should be available for all official purposes including the transport of lay Judges. Somehow or the other, it is disconcerting albeit unpalatable fact that modern techno- logical advances have passed by the Indian legal system leaving it untouched. Till very recently, even the District Court Judge was not provided with the telephone and even now he is not provided with a transport vehicle. It is time that this shell is broken and the modern gadgets are freely used. Transport is one of the most essential modern gadgets.

6.17. Should there be a provision for a higher level review of the decision of the Gram Nyayalaya ? Views were equally divided on both sides but the balance tilted in favour of at least one appeal against the decision of Grain Nyayalaya. The question posed is : whether an appeal would lie against the decision of the Gram Nyayalaya or a limited revision_can be permitted on the questions of law by the next higher court. This is a point. The belief that a reviewof the decision by a higher court ensures justice, lacks foundation. A_p_peal creates a peculiar illusion in the mind of a litigant against whom adverse decision is rendered. It is no doubt true that even the best of legally trained mind may commit an error. A power of review of decision by an appellate forum_also ensures against arbitrary or biased decision. It also ensures against the decision contrary to the well-accepted legal principles. But it has also generated an egocentric activity most especially where» the parties are unequal and the weaker of the two parties has obtained a decision in his favour. In such a situation, the opponent who is 'economically better off considers his defeat, a slur on his status and he has twin objectives in preferring the appeal. He wants to satisfy his ego and simultaneously wants to tire-out the oppo- nent or to put him to such heavy expenditure by way of appeal and further appeal that the pursuit of justice becomes a mirage.

_ A provision of an appeal by itself is no guarantee of a just decision. It has some supervisory ﬂavour. An assumption that an appeal to the higher court ensures justice is wholly misleading. Numerous cases can be cited in which the plaintiff won in the trial court, lost in ﬁrst appeal before the District court, won in second appeal in the High Court and lost in the appeal by his opponent in the Supreme 37 Court. Whidtofthefourisajustdecision. Anditisatritesayinginthecoerithr of courts that if a higher forum for appeal against the decision of the Supreme Court is devised, the Judgement of the Supreme Court there is ever likely of it being re- vcrmd. After all it said and done, a total eradication ofa subjective point of View in decision-making process is wholly impossible. Coupled with that is the fact tint while interpreting socially beneﬁcial legislation, the social philosophy and value system of the Judge at various levels in the hierarchy of courtsplaysan important part in decision making process. How can one explain the reversal of numerous decisions of the High Court by the Supreme Court, and how can one explain the reversal of the decision of the Supreme Court by its larger Bench ? This proves, if proof was needed, that there is an element of subjectivism in all decision making process. It has to be curtailed, controlled, restrained and as far as possible elimi- nated. Having said that it must be confessed that it looms large for whatever worth it is. It is equally fallacious to assume that the errors are not committed at higher level. Number of decisions of the Supreme Court can be cited to substantiate the proposition that the decision of the trial court which was set aside by the High Court was restored by the Supreme Court. It can, therefore, be said with conﬁ- dence that a provision for appeal is not a guarantee of justice nor a bulwark against arbitrary or biased decision. -

It is equally true that no one is infallible. The court of appeal accordingly has been described a court of error. Therefore, its jurisdiction has been held to be coextensive with the trial court. It was said that atleast there must be one forum which must have power to correct the errors of newly created forum of Gram 'NY0.)'3l3Y5-

-In the past when the Nyaya Panchayat enjoyed very limited jurisdiction, there was near unanimity of opinion that no appeal should be permitted against its deci- sion. A revision by the next higher court was generally provided. Its not eifect has been, as pointed out earlier, in the view expressed by Punjab' and Madras High Courts? is to completely strangulate the Nyaya Panchayat. Literally, every decision save the one arrived at by consent of parties of Nyaya Panchayat was inter"- fered with thereby destroying the conﬁdence of lay judges in their ability to render decision and the conﬁdence of litigants. In some of the Judgements, severe strictures were made against -the lay Judges composing the Nyaya Panchayat. This was one single major reason why the entire experiment of Nyaya Panchayat was stillborn.

It was further said that now that a very wide jurisdiction is being conﬁned on the Nyaya Panchayat, atleast one appeal should be provided for. The LawCom- mission has considerable hesitation in making a provision for appeal against the decision of the Nyaya Panchayat in any matter save the criminal cases in which substantive sentence is imposed as the past experience of appeals over appeals not permitting a ﬁnal decision to be arrived at in the lifetime of the litigant as revealul inthe Bleak House by Charles Dickens stares in' the face.

As the Gram Nyayalaya ensures to some extent 9. trial and decision by era's own peers or compatriots, attempt must be made to generate faith in their decision making process. Experience also teaches us that a forum for appeal cannot neces- sarily cure all errors. It may, in fact, introduce or multiply errors. Again provi-

sion for appeal against a decision of a body composed amongst others of lay Judges ' to a body consisting of a Judge alone, would introduce an inner contradiction. The last apprehension is that once an appeal is allowed, it would strike at the root of thedecision by consensus which ought to be the primary object of Grain Nyayalaya. Thgrefote, having regard to all these circumstances, the Commission is of the opi- nion that no appeal would lie against any decision of the Gram Nyayalaya except the one in which at the end of a criminal trial a substantive sentence is imposed.

Another view expressed was that if the Commission is not in favour of providing an appeal against the decision of Gram Nyayalaya, in order to_correct possible errors of law which, if not corrected, would affect subsequent decisions by=the some G;-gm Nyayalaya, a provision should be made for a IVVISlOI1' on a question of law involved in the decision of Gram Nayayalaya and the forum for the same must be the District Court. The Commission is not unaware of thefact thateventhis.is;a danger, signal. Prior to its deletion by Code of Civil Procedure ('Amendinem)'Act, 19-7 (49 of 1973), Sec. 110 incorporated the expression 'substantial question of law'. Sec. 30 of the Workmen's-Compensation Act, 1923, provides that the appeal shall 1 Manna-Maichanivs. Sauﬂmnsantpuniklk l960Punjnb 35. ' Veutaaaeludr Naltlcervs. AIRJSIS3 Mall. 388.

" not lie against any order unless substantial Ouster of the jurisdiction of courts.

Execution of the orders of Gram Nyayalaya.

Constitution.

'38 question of law is involved in the appeal.

Whenever an appeal was preferred limited to a substantial question of law, a very interesting debate ensued : what constitutes a 'substantial question of law' ?, There is no dearth of precedents in which it was held that a perverse appreciation of evi- dence, or no reasonable person would ever come to the decision which is under appeal or a construction of a document by itself without anything more is a subs- tantial question of law. One has, therefore, to tread warily because a limited juris- diction, by process of interpretation, can be widened to defeat the very purpose of conferring limited jurisdiction. ' Some compromise has to be arrived at, which would guard against prolifera- tion of litigation from court to court and a valve to provide an escape route against the dissatisfaction arising from a palpable error in a decision by Gram Nyayalaya.

The Commission is of the opinion that a revision petition to correct errors -of law which had affected the decision of the Gram Nyayalaya to the District Court of the district in which Gram Nyayalaya is functioning would meet the requirement. The revising court may correct the errors in a revision petition ﬁled by a party against whom adverse decision is rendered. But if error of law has not substantially affected the decision of the case, the same shall not be interfered with. The errors of law are to be corrected to guard against future repetition. It would not be open to the court exercising revisional jurisdiction to interfere with the decision of the Gram Nyayalaya on the ground that if the revisional authority would have appreciated questions of fact, it would have come to a different conclusion. Only errors of law can be cor- rected by this revisional forum. Even if it comes to the decision that another view is possible, it would have no jurisdiction to interfere with the decision of the Gram Nyayalaya. A decision by the peers should not be interfered with by a court presi- ded over by a judge approaching the matter from a purely technical legal approach. This limited revisional jurisdiction should be conferred to correct patent errors of law or to prevent miscarriage of justice. The Commission accordingly is of the view that a revision petition would lie against substantial question of law involved in the decision of the Gram Nyayalaya to the District Court within whose jurisdic- tion the Gram Nyayalaya is functioning.

To put the matter beyond the pale of controversy, no revision would lie against the decision of the revisional authority or against the decision of the Gram Nyayalaya to the High Court under sec. 115 of the Code of Civil Procedure or Art. 227 of the Both the jurisdictions will have to be extinguished by appropriate amendment.

An appeal would lie to the Sessions court against the decision by Gram Nyaya.- laya in a criminal case in which the Gram Nyayalaya has imposed substantive sen- tence of imprisonment. The appeal would lie both on questions of fact and of law. The appeal should be dealt with according to the provisions of the Code of Criminal Procedure applicable to the appeals entertained against the decision of a Judicial Magistrate, First Class. Any other view is likely to infringe article 21 of the Consti- tution. ' 6.18. The jurisdiction conferred on the Gram Nyayalaya is exclusive to the extent that in respect of matters covered by the jurisdiction conferred on the Gram Nyayalaya, the jurisdiction of _any other court is ousted. To put the matterbeyond pale of controversy, the jurisdiction conferred on Gram Nyayalaya is not optional as was in the case of Nyaya Panchayat of the yester years. In order to avoid con- ﬂict of jurisdiction, the exclusive jurisdiction in respect of matters herein speciﬁedis conferred on the Gram Nyayalaya and to that extent correspondingly, the jurisdic- tion. of the civil court and criminal court is ousted and excluded.

6.19. It has been repeatedly observed that by superior courts and critics of the court system that Order 21 (Execution of_ Decrees) of the code of Civil Procedure 1908, is a heaven for lawyers. It is a trite saying that the trouble of the decree- holder starts after he obtains a decree. Execution proceedings last over decades. In certain types of suits, a preliminary decree has to be passed : to wt'! in a_ suit for dissolution of partnership and accounts (Order XX, rule 15), in a suit for redemption of mortgage (Order XXXIV, rule 7) and similar other cases. preliminary decree is appealable. Therefore, till the highest court conﬁrms the preliminary decree, further proceedings are virtually frozen. Then a ﬁnal decree is made and the gamut starts all over again. If the ﬁnal decree provides for portion of revenue paying estate, the decree has to be sent to the revenue authorities for effecting partition. . It has 39 become a cruel joke that in a contested suit, the fruits of the decree are not availble -- in the lifetime of the litigant. To avoid such acalamity befalling the Gram Nyaya- laya and in tune with the spirit of its functioning, a simple method for execution of its order must be provided for. The nature of the execution would depend upon the relief granted by the decision of the Gram Nyayalaya. If the relief granted is carving out a passage either to the ﬁeld or to the courtyard for men, cart or cattle, while rendering the decision, the Gram Nyayalaya must take effective steps with the assistance of the reveriue_authorities to demarcate and carve out the passage and injunct any one from interfering with the same. Similar procedure can be followed for providing water channels, use of common pastures, partition and division of ancestral property. In other words, depending upon the relief granted, the fruits must be made available forthwith in or soon thereafter. What is to be borne in mind is not that a dispute has been adjudicated-upon by the Gram Nyayalaya but _the wrong-doer has been made to part with his wrongful gain. No prayer for grant- ing interim stay till the party aggrieved by the decision prefers a revision petition should be entertained.

_ Undoubtedly, there will be some decisions of Gram Nyayalaya the execution of which may entail some delay. In the case of amoney decree, it would be open to the Gram Nyayalaya to grant payment by instalment. If it becomes necessary to attach and sell property for recovering the dues payable under the decree, the Gram Nyayalaya shall proceed expeditiously. The sale has only to be advertised 111 the Tehsil and no elaborate proclamation of sale need be drawn-up. The effort must be to ﬁnally dispose of the dispute by granting the beneﬁt provided for in the decision.

All authorities of the revenue department operating at village and Tehsil level, all police authorities at both the levels, forest authorities operating at both the levels should be put under obligation to assist the Gram Nyayalaya in discharging its functions and performing its duties. Failure on the part of any such authorities shall be treated as misconduct and a Grain Nyayalaya should be empowered to take eﬂective action against such defaulting authority.

A simple code providing for various matters in connection with the functioning of the Gram Nyayalaya may have to be drawn-up. The State Government in consultation with the High Court may enact simple rules in this behalf so that a uniform pattern of functioning of all Gram Nyayalayas can be achieved.

6.20. India is a society governed by rule of law. It is an accepted maxim Liaison 05°"-_ that the society should be governed by laws rather than by men because even the best of men can in a given situation act in an arbitrary manner. Art. 14 of the Constitution guarantees equality before the law and equal protection of laws. At the dawn of independence, Indian society was afeudal society vertically hierarchical in character and more or less based on exploitation of class by class. The Consti- tution envisages an egalitarian society in which justice, social, economic and political will inform all the institutions of the national life. Basic transformation of the society was to be brought about by law. Sociology of law thus acquired a dominant consideration.

Numerous laws have been enacted towards equitable redistribution of wealth, abolition of caste domination, eradication of untouchability, removal of poverty etc. Numerous laws have been enacted for the amelioration of the conditions of the rural poor. Part IV of the Constitution has now received its legitimate recogni- tion(1). If by mere enactments of laws, a basic transformation of the society can be ushered in, this country should have achieved its goal long back. It has now dawned on all concerned that mere enactment of laws is only the ﬁrst step in the direction of social transformation. ' After the requisite laws are enacted, the_execution and implementation of 'the same is the next step, in order to undertake effective implementation of laws, the knowledge of the beneﬁts, rights and duties enacted in the laws must percolate down to the persons to whom these laws would apply. Our advance towards free compul- sory primary education and expansion of adult educational programmes has been shown to be halting. There is still a large segment of society who can be styled as illiterate. Enactment of laws have still a colonial ﬂavour. Knowledge of law is the preserve of technocrats, namely, judges, lawyers and Law academics. The un- fortunate fall-out of this situation is that those for whose beneﬁt the laws are enacted have no knowledge of these laws. Legal literacy and legal awareness are recent phenomena.

1 Art. 31C of the Constitution.

If people for whose benefit the laws are enacted are unaware of it, it is not pos- sible to expect them to claim the rights conferred by the laws or agitate for the same. Even if knowledge of rights grow upon them, they have to take steps to translate the beneﬁts into reality. Different types of courts have been devised as media for implementation of the laws. It is a sad experience noted by numerous authors on the subject that for want of legal literacy and awareness of rights the beneﬁciaries oflaws have taken no steps to enjoy the beneﬁts. The result has been that while the statute book shows numerous laws enacted for the beneﬁt of the weak, the down. trodes and the needy, in terms of beneﬁt, the balance sheet is highly unsatisfactory-.

The question that must be posed is : why this has happened ? Two things stare in the, face. The first is, as stated earlier, want of knowledge about rights but the second and the worst is incapacity to take recourse to litigative process to enjoy the beneﬁts of the rights. This report at this stage is concerned with the second part. -

A discernible tendency which has attracted the attention of sociologists and social workers is that the rural poor are reluctant to approach the court. The rea- son for this reluctance appears to be that the litigative process is so expensive, so formal, highly technical and dilatory ,that a daily bread-earner can ill-alford the luxury of it. The second disturbing reason that manifested itself is that the ﬁght between the seekers of the beneﬁt of law and one from whom the beneﬁt is to be snatched is so grossly unequal that in the end on account of the class structure of Indian Judiciary, the member of the weaker section is generally the loser. By the combined operation of these two formidable reasons, it appears that the rural poor are ill-equipped to enjoy the beneﬁts conferred by the laws. In such a situation, enacting the law becomes at best a paper exercise or at worst a cruel _]0kC.

Even when a highly informal forum is set up at the doorstep of the consumer of justice, it is feared that that by itself would not allay the apprehension of the rural poor in seeking redress by recourse to court. If an individual suffers some harm, occasionally, he takes courage to seek redressal of the wrong done to him. But when it comes to mass violation of group rights, the scenario is distressing. Organised labour may have shown a tendency to vindicate its rights. The concern of this report at this stage is about the rural poor who are generally unorganised and who are ill-equipped to have recourse to court. Should the Commission overlook such gross violation of group rights ? Should it wait for groups to awaken them- selves and approach the court ? If it does not come about, should the society fold-up the hands and turn a blind eye to such violation of group rights ?

The Commission is of the opinion that time has come where a mechanism must be provided for invoking the courts' jurisdiction for redressal of violation of group rights. The group may be mobilised to take recourse to the forum. Even if the group cannot be mobilised on the ground that it is defused and scattered, it must be treated as a State obligation under Part IV of the Constitution to set up an authority whose duty is to move round villages regularly and as soon as it comes across violation of individual or group rights, on their behalf, to take recourse to the; court. A Liaison Officer must accordingly be appointed, posted and attached to each Gram Nyayalaya, who would not be a part of the Gram Nyayalaya.

It would be the primary duty of the Liaison Oﬂicer to tour villages within his jurisdiction regularly, to contact people belorigingto poorer strata of the society, to ascertain from them whether certain beneﬁts which have been conferred by the statutesare made available to them, to collect data 'where breach comes to his notice and then motivate the group to have recourse to the Gram Nyayalaya and failing which to himself becomes the petitioner on behalf of the_deprived group to seek the beneﬁt. A statutory provision shall be made not permitting his locus standi to be questioned by the party against whom the action .18 commenced. When such a dispute is brought before the court, Gram Nyayalaya will have powerto call for information from experts, records from the concerned government department and assistance of non-governmental social service organisations. The Grain Nyayalaya must be empowered to seek assistance of any institution or organisation operating within its jurisdiction for carrying out welfare activities for the beneﬁt of the rural poor. Accorv dingly, a Liaison Oﬂicer with a legal background should be appointed and attached to each Gram NYaYa13Y3- The State Government shall draw up a list of non-governmental voluntggr organisations operating in rural areas for carrying on welfare activities for the ben t of the rural poor. The information shall include the names of Qﬂico-hearers, object 41 for which the organisation has been set up and its speciality in the ﬁeld of welfare activity. Every Gram Nyayalaya will be furnished a copy of the same. It would be open to the Gram Nyayalaya to enlist services of the oﬂice bearers or other workers of the organisation to assist it in bringing about the reconciliation between parties before the adjudication proceeding is undertaken. The list can also be useful in selecting the Panel of lay Judges. Tln's will make the participatory process far more effective.

CHAPTER VII CONCLUSION Conclusion 7.]. While assigning the work of the judicial reforms to us, the Minister for ' Law and Justice, Government of India, informed us that---- ' "the problem of delays and arrears in Trial and Appellate Courts has, over the years, assumed serious proportions. The extent of pendency of cases in various courts in the country is very high. Increase in the number of Judges has not been able to halt the mounting arrears in the courts. The recommenda- tions made in the past by various bodies, like the Law Commission and the High Courts Arrears Committee (Committee presided over by Justice J.C. Shah, former Chief Justice of India), have been found to be inadequate to effectively deal with the rigidities and dilatoriness of court procedures. A fresh approach is necessary to examine to which extent decentralisation and other changes in the Constitution and functioning of the courts should be brought about and what basic changes in structure and procedures should be devised to eliminate delays in the disposal of cases of all categories pending before all courts".

As a matter of fact, he, way-back in 1958, in the course of a discussion in the Rajya Sabha, had also observed:

"There is no doubt the system of justice which obtains today is too expensive for the common man. The small dispute must' necessarily be left to be decided by a system of Panchayatjustice--<:all it the People's Court, call it the Popular Court, call it anything----but it would certainly be subject to such safe- guards as we may devise--the only means by which for ordinary disputes in the village level the common man can be assured of a system of judicial administration which would not be too expensive for him and which would not be too dilatory for him".

Since then the situation has worsened considerably.

The Law Commission, free from pre-possession and any prejudice, probed into an hitherto unexplored region in search of solution which must have both newness and utility. The search ends here. There is no attempt to claim originality. A solution may appear to be a synthesis between old values of lasting durability and new values which require to be enthroned in the ﬁeld of judicial administration. Talking, discussing, deliberating and provoking a discussion, helped us in under- standing the existing inﬁrmities. Care has therefore, been taken to devise the forum in which, at any rate, the existing inﬁrmities will have no entry door to corrupt it. Restructuring a system while reforming it permits retention of the acceptable part and rejection of the redundant. That was the approach we set out with and we are concluding in the hope that a start may be made, even if need be, as an experimental measure, in selected areas in every State to give the recommended system the chance to prove its credentials. A watchful observation in the initial stage will help in remo- ving impediments that may appear in the process of implementation. The law Commission would always be available to amend, reform and revise, if need be, to make the system effective in the service of the people for whom it is devised.

(D.A. DESAI) Chairman (V.S. RAMA DEVI) Member Secretary New Delhi, dated the 12th August, 1986.

APPENDIX I LAW COMMISSION OF INDIA WORKING PAPER ON ALTERNATIVE FORUM FOR RESOLUTION OF DISPUTES AT GRASS-ROOTS LEVEL 43-44 CONTENTS Cwmzn ' Pm I INTRODUCTORY . . . . . . . . 47 H NEED FOR RESTRUCTURING THE JUDICIAL SYSTEM 49 III NYAYA PANCHAYATS . . . . . . . 54 IV PROPOSAL FOR ADOPTION OF A NEW FORUM OF NYAYA PANCHAYATS . . . . . . . .

u-uIP<N)44mon.JacA-4 45-46 ... ... .. , ,. _ ,, .

:15: 1:...A.mc.>nsst...it.h.e. terms; of reference of the La.w:..Commission.thizb-DrioIity;¢1¢§!=9i* deserves to be accordecllp. the ﬁrstterm, namely, ..'.'t'9;-keep undenreview the. sys.tcni-:. of judicial %€_1111i,.l1.i_S.t.F.8ti.9_I..1,t0__¢I1§11lT¢that i_t._is .responsiv.:e_.to the, reasonable .de.xn.a.n.d§ .. , .. ofthetime". . , .. . M .» ,. - . .v _~. 1-';

Of late, the delay in the _dis osal of casesand_thei99n§§qu,ent_,arrears;in a_1l,t,l_1_e courts had beenthe subject of ' iscu'ssion" at various forums and a' number bf"sugges- tions, including changes in the system of administration of justice, have also been made. The Law Commission has also dealt with this aspect in a number of reports. In view of the importance of the subject and the need for speedy administration of justice, the Law Commission has decided to examine this subject in all its ramiﬁca- tions on its own and submit a report.

1.2. Keeping in view the historical perspective of a number of attempts made Ptl'°"Il;"' '° in the past by various Commissions making eleborate, well-considered and valuable ° -53%: and om', suggestions for re--structuring the justice delivery system so as to make it effective, commine¢s_ cheap, speedy and people-oriented, attention of the Commission was drawn to the earlier reports being Fourteenth, Twenty-Seventh and Seventy-seventh Reports of the Law Commission.

1.3. The Fourteenth Report exhaustively dealt with the question of reform of Fourteenth Report judicial administration. It took notice of the fact that 'the post-independence period of,th_e Law Com- witnessed a powerful demand for a complete re-orientation of the legal and judicial ""'"'°"' systems of the country.' The response to this powerful demand was the setting-up of the Fitst Law Commission in 1955. By a resolution which speciﬁcally refers to the functions of the Law Commission amongst others to devise ways and means to realise that justice is simple speedy, cheap, effective and substantial} 'The judicial system introduced by the empire buiders is unsuited to the Indian conditions and is something alien transplanated on the Indian soil.3 In order to answer this query, an- attempt was made to ﬁnd out whether there is any indigenous justice delivery system. In the Fourteenth Report of the Law Commission after observing that 'in suggesting ways and means for the improvement of our present system of judicial administration, it does not preclude us from considering radical and revolutionary measures which may make it more suitable to our needs' expressed its opinion 'that the way to reform does not lie in the abandonment of the present system and in repla- cing it by another. The true remedy lies in removing the defects that exist in the present system and making it subserve in a greater degree our requirements for the present and the future.'4 Accordingly, the criticism that the justice delivery system then in vogue (1955-58) was not in accord with the genius of the country, was rejec- ted as being without any substance. Having thus reached an afﬁmative conclusion that the system requires to be remedied, but not replaced even in parts, though calling for revolutionary measures to make it more suitable to the needs of the time, the Commission recommended certain changes.

1.4. The exercise was again taken in _19j8. The Commission took note of 'the wnwumm criticism that the present system of administration of justice is not suited to the Report or the genius of our people, is based on the ground that our society basically is an agrarain Lpw ' society not sophisticated enough to understand the technical and cumbersome proce- "°"- dure followed by our courts.5 The conclusion reached was that 'the present system is not a product of one day and that it will be a retrograde step to revert to the primi- tive method of administration of justice by_ taking our disputes to a group of ordinary laymen ignorant of the modern complexities of life and not conversant with legal concepts and procedures.' There appears a lurking respect for the system as it is administered, coupled with a fond hope that 'the real need appears to be to further improve the existing system to meet modern requirements in the context of our national ethos and not to replace it by an inadequate system which was left behind 'LCI Fourteenth Report, Vol. I, Ch. 2, para 12, p. 15.

'Lok Sabha Debates : Vol. III Part II, 1954 columns 1860, 1861. 'LCI, Seventy-seventh Report, para 3.1, p. 7.

'LCI Fourteenth Report, Chapter 4, para 20, p. 31.

'LCI Seventy-seventh Report, Chapter 3, para 3. 3, p. 7.

47 48

long ago.' There was, however, a body of contrary opinion which unmistakably felt that 'the British system of administration of justice in our country has not been an unmixed good . . . . . . . . ..it has also, at the lowest level, alienated the people from the system because of its foreign origin, technicality, extreme formalism, rigid rules of procedure and relevanc€'and'foreign'Ianguage. It has, at the village »-Ie'v'el, aadeventst me Ieveloftaiuka towns, as s'l*ivh'sylIém'v'rhiv6h*ha¢ no livingeeataot with the masses and is new meaningful to dim.' 'I.CI Seventy-seventh Report, Ch. 3, pan 3.20. p. 10. uimn ofthe but Awcowmmm. (Govt. of Gujarat) 1911, pm 13.12, p. 209.

CHAPTER II NEED FOR RESTRUCTURING THE JUDICIAL SYSTEM -

'2.1. Let it not be forgotten. that for pax britannica the colonial masters in- Reason, for in. ducted in India by and large, the judicial system in vogue in their country. One ductinz_the 9-lien does not build-up an empire for some altruistic purpose. If charity begins at one's "Stem "'1 Ind"- own home, empire begins at the home of other people. Amongst various moti- vations, the one central to the empire building is economic exploitation of the co- lonies for ensuring higher standard of life of the elite of the ruling masters. This economic exploitation necessitates internal peace and external security. Internal peace is guaranteed by ﬁrst maintaining a foreign military, loyal police and legal justice system which would keep the parties continuously litigating in law court with hierarchy of appeals so that the Indian illiterate, the victim of injustice struggles through the labyrinths of courts and loses all initiative for settling the dispute by resort to force, is drained of all his vitality and physical power to assert his rights and his economic wherewithal in paying for the costs of litigation and his political will by loss of precious time in the litigating processes. Jamdyce v. Jarndyce (Char- les Dickens) is the ideal set forth to the seekers of justice. If people complaining of injustice remain glued to the court, they do not disturb law and order, maintain _ peace and permit naked economic exploitation and the beguiled and the believers and the beneﬁciaries (Legal profession) go on paying tribute to British system of justice.

2.2. This reverence of an entrenched few for the system thwarted every move Basic chm es not for its re-structuring. While admitting on all hands in 1958 and 1978 that the sys- manifested in the tem has been over-reached, dilatory, expensive and injustice-ridden, the will to Past- suggest basic changes did not manifest itself. In between, efforts were made to rejuvenate it by suggesting some reforms so as to reduce the time in obtaining jus- tice, to clear backlog of arrears, to make it comparatively less expensive so that the criticism against it can be met to some extent.

2.3. The question we must pose is : have these efforts yielded results ? The Failure of egﬂigr answer is emphatically in the negative. The mounting arrears'? (1237566 cases efforts. were pending in the High Courts as on 31st December, 1984), in various high courts and the ever-rising graph of_ arrears in the Supreme Court of India will affirmatively establish that all this tinkering at the fringes have not only not yielded the desired results, but have in fact aggravated the situation. The consumers of justice have been patiently waiting since the setting up of the Law Commission in 1955 till today for restructuring the system so that it may become both justice and people-oriented_ 2.4. The task is gigantic and has to be tackled in parts. It is proposed to deal Working paper on with a radical restructuring in the matter of resolution of disputes at grass-roots '°Sm'°*"1'|n8 9-' 1eve1_ grass-root level.

i 2.5. India lives in its villages. 80% of the population reside in what are des- cribed as rural areas, seven lakhs villages accommodate 80%'of the population, 2.6. The disputes arising in these rural areas have a distinct local rural ﬂavour-_ Curnbersome pro- The irony is that these disputes are sought to be resolved by a procedure uniforml "i-°"°"". °';. C-P-Q applied from the smallvillage to metropolitan areas like Bombay, Calcutta, Madras, i':8t::§dd§;:fgl' Delhi, etc. Disputes involving crores of rupees, raising intricate questions of law ' and constitutional issues of_far-reaching importance on the one hand and posses- sionof petty occupancy, minor dispute as to passage to the ﬁeld, dispute as to loca- tion of irrigation channe1,_ dispute as to a share in a small occupancy land on the other hand are all dealt with by the same cumbersome procedure prescribed by the Code of Civil Procedure, 1908, as amended from time to time. Is this not an ano- maly ? Does it need a change? Reform of substantive law may be kept aside for the time being because according to Prof. Michael Zander_ of the London School of Economics 'what matters in the matter of law reforms is the cheapness, acces- sibility, and expedition of the legal process; that the substantive law is of less impo;--

tance than the procedural_1aw'9. This paper proposes to suggest restructuring of dispute resolution mechanism at grass-roots level in respect of disputes arising in rural and semi-urban areas.

Rural Majority.

a._ .1m'oi=rnation supplied at the Conference of the Chief Justices of the High Courts, Chief Ministers and Law Ministers of the States held in September, 1985.

9. As quoted in Lord Scarman "Law Reforms in .1 Democratic Society" (1985) p. 31.

Nature of disputes in talukal tehsil Courts.

Stakes in disP|1t€5 disproportiona e to relief claimed.

Too much invol-

vement in procu-

dural wrangles.

Defects in the present advrnary system.

2.7. A cursory examination of the institution of cases in taluka/Tehsil courts variously described as court of Munsif/District Munsif/Civil court (Junior Division), etc. reveal the following broad classiﬁcation of the nature of disputes :

1. Civil Disputes Disputes arising out of implementation of agrarian reforms and allied sta-

tutes. '

(i) Tenancies-protected and concealed and contested.

(ii) Boundry disputes and encroachment.

(iii) Right to purchase.

(iv) Use of common pasture.

(v) Entries in revenue records. -

(vi) Regulation and timing of taking water from irrigation channel.

(vii) Disputes as to assessment.

11. Property Disputes

(i) Village and farm houses (Possession).

(ii) Sehan.

(iii) Easements : Right of way for men, cart and cattle to ﬁelds and courtyards.

(iv) Water channels.

(v) Right to draw water from a well or tubewell.

. Family Disputes

(i) Marriage

(ii) Divorce

(iii) Custody of children

(iv) Inheritence and succession-share in property.

(v) Maintenance.

2.8. If the stake involved in each of the disputes falling under any of the heads herein above enumerated is evaluated in forms_of cost beneﬁt analysis, it_would appear to be fairly disproportionate to relief claimed and disputed in the litigation though to the parties concerned, that may appear to be of some considerable impor- tance. These disputes at present land in the court of the lowest denomination, na- mely, Munsif/Civil Judge (J.D.) or Revenue Officer. They have to be processed ac- cording to the procedure prescribed in the Civil Procedure Code or in respect of disputes falling under revenue jurisdiction, according to the code prescribed for_ processing disputes of this nature. 'Civil Procedure Code has been u_niversally.ac- cepted as formal, hyper-technical, dilatory, time-consuming and proli_x. Qccasion- ally the procedural wrangles outweigh the real dispute whose resolution is pushed aside and acquires a secondary importance. In what manner can one appreciate the 1576 judgements upto 1971 rendered by the Supreme Court on various topics A ' under the Code of Civil Procedure touching purely _procedu_ral aspects such as amendments of pleadings, framing of preliminary issues, interim injunctions, framing of issues, discovery and inspection, etc. Some of the afore-mentioned disputes are simple and wholly uncomplicated and can be disposed of in a few hours more so if handled at the spot. In an adversary system, spot resolution of disputes is generally frowned upon. The Judge must sit at an ordained place ~ where parties must go with the lawyers, witnesses and documents and the 'Judge hears both the parties after all the formalities prescribed at various stages in the Code of Civil Procedure are gone through and then leisurely decides the dis- putes The average duration for disposal of such cases noticed in the year l95f1 varied from 369.8 days in Assam to 762.6 days in Bihar.1° 'A total number of ori- ginal civil suits pending at the end of the year 1954 was 6, 12,635. '11 'The total num- ber of suits and miscellaneous cases pending in the subordinate courts on 31st Dc- cember, 1977 was 21,09,986.'12 The average duration now exceeds three years.

10' LCI Fourteenth Report, Vol. I. Ch. 11, para, 7, p. 261. u_ [bid para 3, p. 253.

in. LCI Seventh-seventv Renorhp. 69.

In between 1954 and 1977, the Law Commission submitted three reports reeom- Effects 0! amen- mending changes in the Civil Procedure Code for reducing the delay in the disposal %"'.f"'3 t'° C-Pl. -C~ of cases. The ﬁgures hereinabove extracted tell their own tale. And all throughout mil ".{;,,';d obj-,¢_ the eﬂ'ort was to suggest radical changes in the Civil Procedure Code. 13 A very tive.

cautious approach adopted in recommending amendments and modiﬁcations in the Code of Civil Procedure by the Law Commission of India in its Twenty-Seventh Report was replaced by a proposal to suggest radical changes and 'caution was not to act as a constraint where the expenses of procedure and the necessities of the times require radical changes.'14 The exercise was speciﬁcally undertaken to make avail-

able justice to the consumers at a price they can afford. It was accepted that "an expensive procedural system is a self-defeating instrument of justice." 15 The F ifty-

Fourth Report recommended numerous amendments in the Code of Civil Proce-

dure, 1908. This led to the enactment of the Code of Civil Procedure (Amendment) Act, 1976. Several alterations have been made in the then existing provisions of the Civil Procedure Code and new provisions have been added based on the recom-

mendations made in the Fifty-Fourth Report. The Amendment Act came into force on February 1, 1977 except certain sections. Accordingly, the exhaustively amended Code of Civil Procedure designed to reduce the time spent in disposal of suits and to make the system speedy, effective and less-costly, has been in vogue for over 8 years. It is acknowledged on all hands that apart from making no impact in the manner, method and mode of resolution of disputes, it has proved to be counter-

productive.1° The powerful impact which the justice delivery system has on a e . vast number of citizens has to be taken note of so that it may be properly appre- N,,d- go, ciated that the reform of the system is a matter of vital importance 'not only to structural ' the lawyer and the Judge, but also to the State and average citizen.' 17 The priority in the_ system of thus delineated has to be reversed and the true test would be the pains and gains of f1'f:°}J':;;°" °f the average citizen, the consumer of justice. Theharsh albeit unpalatable outcome P ' of this bizarre exercise cannot be washed away in that by keeping the structural part of the Civil Procedure Code intact and tinkering with it at various places would not be conducive to making the system resilient, effective and responsive to the felt needs of the times. The inescapable conclusion thus is that a basic structural change in the mode, method and forum for resolution of disputes is the sine qua non, before the system is engulfed by its own debris.

2.9. It would be unwise to look at the problem from the point of view of court Problem to: be ' management only. In other words, it would be very imprecise to examine the mat- qxlmined i_n.'. the ter from the aspect of ever-growing court dockets. Such an endeavour has to be '11,?!" Pl; R"'°""'° guided by the aspirations proclaimed in the Constitution of India. Article 39Atiol:°:§ th} eggttn of the Constitution of India directs the State to secure that the operation of the legal imperative. system promotes justice on a basis of equal opportunity, and shall, in particular provide free legal aid, by suitable legislation or schemes or in any other way,to en-

sure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. This is the constitutional imperative. Denial of justice on the ground of economic and other disabilities in nutshell referred to what has been known as problematic access to law. The Constitution now commands us to remove impediments to access to justice in a systematic manner. All agencies of the Government are now under a fundamental obligation to enhance access to ' justice. Article 40 which directs the State to take steps to organise village panchayats -

and endow them with such powers and authority as may be necessary to enable them to function as units of self-government, has to be appreciated afresh in the light of the mandate of the new article 39A.

2.10. How does one develop an approach to_access to justice contemplated shin in me gmp. by article 39A 7 Hitherto, as we will shortly note in our discussion of the organi- hasis on the border zation of Nyaya Panchayats, the dominant consideration has been to ameliorate '" 'h° °°"" 5Y"'-''"' the burden on the court-system, not so much to prevent denial of justice to any to d°m-al °f j"sﬁ°°' _ , . . . . . _ t th 't' citizen by reason of economic or other disabilities. The command of article 39A igsulte °Li-'°"ar?=i2 now is to focus on these disabilities and to develop schemes for their removal. The 39A. managerial consideration of ameliorating the burdens on _court-system through crea- tion of local fora for dispute settlement cannot predominate any longer.

". LCI Fifty-Fourth Report, Ch. I, para 1.5, p.2.

1'. lbid. -

".Ibid.,par_a1.6.P-2«_ _ __ __ _ 1'. Judges with vast experience of the_ handling of civil_ litigation from grass-root_level brought their experience into making recommendationsand this empirical research helped them in recommen- ding extensive amendments in the Code of Civil Procedure. These recommendations as suggested we"; largely accepted but pursuant to their implementation, the -outcome is the most undesirable which could not have been foreseen. ' I. ". LCI Fourteenth Report, Ch. 3, para 1, p. 17.

5 Indian leplsystcm. mic 52 ~ 1&bl'.ltles'ln the 2.11. The other disabilities referred to in article 39A, distinct from the econo-

disabilities, are assuredly diﬂiculties posed by the existing profiles. of the Indian Legal System. This system, as has been pointed out, itself imposes disabi- lities on people in their quest of justice. The disabilities arise because of lack of suitable local fora for dispute handling and an emphasis on professionalized justice. The renovation of the system, now contemplated by the Constitution, requires us to remove these disabilities. The professionalized model of justicing cannot be extended to Bharat, not merely because India has about 2,50,000 lawyers only but also because bulk of them are located in urban areas and given the voluntary _ nature of the profession, it is at this stage not possible through the law to plan their dispersal in a manner which would adequately and equitably serve the needs, of the Indian masses. Such a measure ought to be atleast proposed and discussed. But, for the time being we accept the realities as they are.

Alternative system_ 2.12. If professionalized model of justice delivery thus cannot be _extended to meet the legal needs of the Indian masses, it becomes incumbent to consider alter-

natives. The alternative is deprofessionalized model of justice. In this model, ,-the ' indigenous juristic potential of the people, including their.own sense of justice, is allowed room for development. This has been sought to be done through people's participation in justice.

Re-structuring 2.13. Any pyramidic structure to survive must have strong foundations. The at srass-rootre-structuring must, therefore, start from the bottom and then move vertically °l' upwards. The ediﬁce of the present day justice delivery system is hierarchical in character. At the bottom, there are grass-root courts variously designated as Munsif/ District Munsif/Civil Juge (JD) courts. The litigants come primarily in direct contact with these grass-root courts. The view of the system at this level shapes the general evaluation of the whole system. Petty disputes arising in rural areas are brought to these courts for their speedy and effective resolution. If a new mode and method is devised for resolution of such petty disputes, it will account for 75 % of the liti-

gation being dealt with in a speedy, effective and less-costly non-cumbersome manner. $:31°3"df0rb';:g]_ It has an impact on vast masses. If the disputes brought to the grass-root courts man of petty d§5p_ are settled by a less formal or informal speedy procedure and _more or less , utes in rural areas on the spot with people's participation, the feed stock for appeals Wlll be substan- W314 "S011 in the tially reduced. While 'devising such a forum coupled with a less-formal procedure, ':c'gh"8'ifi7ea_h°gl.t°f1'3;?I'; care has to be taken of not disturbing the susceptibilities of the rural population L-- V, 1 speed," and about their conﬁdence in the court system. In devising such a system, attempt must cheaper manner. be made to combine the best from all sources. The resolution of each and every dispute does not call for the expertise on the technical aspects of substantive law.

Settlement of disputes arising in a locality by a body of laymen of the locality is almost universally recognised. Number of such institutions all over the world may be briefly noticed to substantiate this statement." The . .. institution of Justice of the peace in England and United States of America, P°%gl§ sinp':$°" 'Peoples Court' in USSR and with minor variations in all Eastern European count- ﬁmmstmtion of ries and the Institution of Lay Justice all entail people's participation in the administ- justice. ration of Justice. Yugoslavia 'is making an attempt in the direction of setting-up exclusively lay tribunals more or less based on the ideology similar to that underl-

ying our Indian Panchayatsﬁ-9 So is the remarkable experience of _ Hungary in the Sy-

stem of People's Assessors. '*0 The concept of lay part1cipation_in judicial decision making made its appearance centuries back and it "began with the appearance of a 'third party'who establishes the ransom following the periods of self judgment or blood feud". 21 Mediation model for settling disputed issues developed when and where the third party intervening in the dispute had suﬁicient prestige and power to enforce decision, ransom indicated State intervention, private injury be-

came public injury which assisted the process under which passing judgment became ' a state fuction. 22 In some form or the other, lay local participation in the mode

19. The Institution of 'Justice of the Peace' in U.K. dealing with the greater part of criminals jurisdiction and a small but not unimportant part of civil jurisdiction 'is the _wonder of_all foreigners fornothing like it exists in any other part of the word'. 'With few exceptions, this institution has worked quite satisfactorily and it is quite cheap; C.K. Allen, The Queen's Peace (The Hamlyn Lectures, Fifth Series, 1953), p. 178.

1'. Report of the Study Team on Nyaya Panchayat, Government of India Ministry of Law (April 1962), Ch. III, para 16, p. 29.

'°. SeeKalman Kulscar :People's Assessors in the caurts;A study on the Sociology of Law (1982). ' I1. Ibi'd., p. 17.

". lbid.. D. 18.

53 ;

and method of resolution of dispute wasalways in existence. Before the adyentof justice, there undoubteldy was-'an indigenous [system for resolution of disputes.-

The imp-:'-.Ct of English language, western literature; the British system of Justice and the "universal rationality' of Western Law have combined to induce' an inbuilt pre- _ judice for anything ancient. However, whjle,.trying to unearth and evaluate .the_ 7 _ . 7 indigei 2- s .sj,'si:.'.m. it was foun:.%,_~;'that the essentials of' our ancient system werenbt ind' . , very (lift "U; from those of our present systern.'-'.3 While comparing tltetwo systems, 'I' 4 it wasac 'spied that the subsidiary features of the 'present system,inc1udes.cl11_x_11sTy and'cc.n~l' To us procedure, while the earlier one was simple and less-formal. Un'_doub~ tedly, "as the society advances from stage tcrsgage, its needs alter from time to time and any sy.~,tern which governs' the functioning of society or its component parts would also call for progressive rn_'odiﬁcatior1.'24 One has, therefore, to keep ipunind while devising the mode rn system, the changes that have ocfcurred in the conditigms and structure of the societyvfor which the system is to be devised. ' ~ W' 1 V, L I . \ P .

in. LCI. Fourteenth Report, Ch. 4, para, 5, p. 25;

2-; ma.

CHAPTER _111 NYAYA PANCI-IAYAT_S History of Nyaya 3.]. Leaving aside the Hindu system, the Muslim system, the Royal Tribunals, ?'"°h'V"'- etc., let us turn to Nyaya Panchayats which appear to be of historic antiquity.Prior to the Mughal period, village communities created their own Panchayats. There was no element of election. Respectable members of the village community formed the Panchayat and the decisions were generally accepted by the village community.

Few disputes landed in courts. They were resolved more or less by a process of ' conciliation at the village level.' Undoubtedly, during the Mughal period, some attempt was made for centralisation of justice system but the Britishers realised that there is a sort of an emotional attachment to Panchayat system and it might provide a reliable basis for decentralisation of administration including judicial administration. The Royal Commission of 1907 upon Decentralisation in India recommended the constitution and development of village Panchayats with certain administrative powers and jurisdiction in petty civil and criminal cases. 25 Pancha- yats were largely responsible for revenue administration of the village. 'Nyaya Panchayat' so named dealt with resolution of disputes.'These Nyaya Panchayats are in vogue in one or the other form, sometimes active, more often dormant. Earliest statutory recognition came in the form of the village Courts Act, 1888 in Madras and the work done by such court with its very limited jurisdiction was appreciated by the High Courts of Madras by expressing the hope that more and more people will resort to the village courts. Number of other provinces adopted legislation similar to the Madras Act. The Civil Justice Committee of 1924-25 observed: "The Village Panchayat----vilIagers mediating between contending parties in their own village has, in some form or other, existed in this country from the earliest times and that without resort to any elaborate or complicated machinery. The judicial work of the panchayat is part of that village system which in most parts of India and Burma has been the basis of the indigenous administration from time immemorial." 2"

Raw" of-the study 3.2. After the introduction of the Government of India Act, 1935, various 'rum on Nyaya provinces as part of their programme of democratic decentralisation enacted legis- Panchayats. '-lation for the revival or revitalisation of Panchayats including Nyaya Panchayats. Government of India appointed aStudy Team under the Chairmanshipof Mr. G.R. Rajagopaul, a Member of the Law Commission, on the functioning of the Panchayat courts in various States keeping in view the conclusions recorded by the Law Comm- ssion in Chapter 43 of its Fourteenth Report. The Study Team submitted its report. It inter alia recommended that villagers must be given a free hand in electing members of the Nyaya Panchayat and it totally ruled out the system of nomination. Rejecting the suggestion of voluntary submission of disputes for resolution of Nayay Pancha- yats, it recommended that the .jurisdiction of Nyaya Panchayats should be exclusive but in the ﬁrst instance, it must be conﬁned to simple, money and other suits and the upper pecuniary limit of civil jurisdiction may be Rs.250/-which may go up to Rs. 500/- with the consent of the parties. It was not in favour of conferring jurisdiction in matrimonial causes. It recommended conferment of jurisdiction for trying criminal cases in respect .of petty matters where the punishment in the form of a ﬁne would be an adequate corrective. It was not in favour of conferring revenue jurisdiction on the Nyaya Panchayats. It' advocated introduction of conci- 1 liation as the method of resolution of disputes to be undertaken at the discretion of the Nyaya Panchayat. The Committee also drew up a formal bill to give effect to its recommendation called the Nyaya Panchayats Bill, 1962.

Recommendations 3.3. The Government of Gujarat appointed a Committee styled as the High- of Panchayat Rai Level Committee on Panchayati Raj.It submitted its report in 1972. Nyaya Pancha- afd . yats have been dealt with in Chapter XIII of the Report. Before this report is taken ifiewseg .,,,'""%,'; into consideration, it would be necessary to refer to the Chapter on Nyaya Panchayats the Government of in the Report of the Legal Aid Committee, 1971 set up by the Government of Gujarat G"J'-'Hat under the Chairmanship of the then Chief Justice of Gujarat High Court Justice P.N. Bhagwati. The Committee recommended a new pattern of Nyaya Panchayat '5. LCI Fourteenth Report Vol. II, Ch. 43, para 3, p. 874. 9". Extracted at page 874, Vol. II, DCI Fouteenth Report.

54 55

with a Panchayati Raj Judge totbe assisted by two members from amongst a panel of persons to be drawn-up by the Collector of the District _to act as Members. of Nyaya Panchayat. It advocated as far as possible on the spot resolution of dispute by Panchayati Raj Judge and its two Members. It recommended a simple proce- dure more or less guided by justice, equity and good conscience. It in terms said that the procedure should be simple and uncomplicated and it should not be befogged byitechnicalities or complexities. The Panchayati Raj Committee more or less agreed with the recommendations of the Legal Aid Committee save and except that it was opposed to nomination of two Members of the Panchayati court by the Collector and it advocated election. 9 3.4. No stronger case can be made out in favour of peoples' participation in Re-introduction of the administration of justice with the reinduction/revitalisation of 'the histori- Eegaya P'""l'-h3Y3t.:. Acally popular institution of Nyaya Panchayat. pwp1§§amp';fﬁcip:_ 'tie? in t1}e_ adminis-

ra ion 0 JUSUOC.

3.5. Let us at this stage recall the apprehensions voiced by the earlier law Conrmi- Apprehensions ssions on conferring wide jurisdiction on Nyaya Panchayats. The Civil Justice 33:' "*3 NY"-Y3 Committee (1924-25) observed that 'communal differences and factions are in the d,,,,,'1',"g{" symm way of any further extension of the jurisdiction of these tribunalss'. There is some force in this objection, but it is in our opinion overstated. In villages where there 'are common interests to be protected, common services to be rendered and common funds to be administered, it is idle to ignore the common life of the village in which \ the necessities of neighbourhood have held their own_ or have prevailed against the divisions of caste." The Law Commission in its Fourteenth Report after taking note of this observation, futher observed that 'these factions and divisions, have increased by reason of the introduction of adult franchise all over the country and the appearance of political parties in the villages.' Rejecting this criticism and discou- - nting the apprehensions, the Law Commission concluded that 'there is no reason why, with proper safeguards, these courts (Nyaya Panchayats) should not function with a fair amount of success and either conciliate or decide the petty disputes ari- sing in the villages.'28 Similarly, the Legal Aid Committee set up by the Government of Gujarat took notice of the factious atmosphere in villages further sub-divided by caste, community and politics, they entertained a genuine apprehension that 'it would be diﬂicult to expect even-handed justice to be meted out by members 'ofNyaya Panchayats who would belong to one faction or group or the other°=9. These hesitations were dispelled by the overriding consideration that the Nyaya Pancha--v yats with a slightly different pattern would be an effective vehicle for rendering justice on the spot or at the doorstep of the litigants. It would have an healthy impact on the village economy inasmuch as it will be a low cost justice system and man "days in securing justice would not be lost,. The psychological change that the rural poor would undergo by this altered system of administration of justice by their own peers in substitution of an alien system would be immeasureable. Trust them, provide safeguards for possible pitfalls, but do not reject them. Any innovation is always fraught with unseen danger but that by itself cannot be a road block to change, 3.6. Even the Rajagopaul Committee after taking note of these apprehensions Nyaya Panchayats strongly advocated retention and revitalisation of Nyaya Panchayats. the' Committee. \ ". Report of the Civil Justice Committee, page 116, cited in LCI Fourteenth Report, Vol, II, Ch. 43, para 7, p. 876. V ". LCI Fourteenth Report, Ch. 43, para 25, pages 911 and 912.

". Report of Legal Aid Committee, (Govt. of Gujarat, 1971) page 211. Para 13.14 (iii),P 211.

' CHAPTER IV PROPOSAL FOR ADOPTION OF A NEW FORUM OF NYAYA PANCHAYATS .

Composition of 4.1' It is at this stage advantageous to refer to the composition of Nyaya Pan- existing Nyaya chayats at present in vogue. The Nyaya Panchayats at present are composed of P3"°h°>'3'5- directly elected members, and in some cases elected members of Gram Panchayat forming Nyaya Panchayats. The method is wholly elective. Undoubtedly, with adult universal suiferage and democratic decentralisation, po'itical parties have penetrated into the smallest village. Even theiPanchayat elections are more or less fought on political party lines. To that extent, thevillage landscape is politicised.

The purely elective system may bring in politicised individuals to man Nyaya Panchayats and with it would come inevitably pdlitical confrontations, prejudices and divisions. This may hamper administration of even handed justice. And even if these elected representatives act in an wholly judicious manner their political attachments would cause dissatisfaction amongst litigants to different political hue. This would cut at the root of one of the facets of justice, namely, justice must seem to be done. Therefore, having regard to this existing unquestionable situation, it is necessary to devise a scheme which permits people's participation simultane-

s ously avoiding the pitfalls of elective system.

.Constitutional 4.2. A forum for resolution of disputes with people's participation in the Justiﬁcafion for 3 administration of justice is justiﬁed in terms of Article 39A mandate. It may also §°"' :°l',:§;h§fat seem to be justiﬁed in terms of providingsimple procedure which may help in ﬁghting yay y ' the delay in the disposal of disputes simultaneously reducing the cost of making justice effective and substantial in character". A body variously described, as Nyaya Panchayat, Lok Adalat, Jan Panchayat, People's Court' is the goal intended herein.

Its basic details are worked out in the succeeding paragraphs.

Composition of 4.3. The constitutional goal is to set up'an egalitarian society governed by Nygya Panchayats rule of law. It is oft repeated with some emotional attachment that we may better Panchayat Judges. be ruled by laws than by men. The wholly elective method of choosing members for Nyaya Panchayats may not permit a legally trained mind to get into it. Basic knowledge of laws to render justice according to law is must. Therefore, any com- position of Nyaya Panchayats must ensure for a legally trained Judge. It is, there- fore, suggested that persons recruited to the civil judicial service of a state as Munsif, District Munsif or Civil Judge (JD) should preside over the Nyaya Panchayats. They would also be subject to the jurisdiction of the High Courts under Article 235 of the Constitution. They would, however, be eligible for promotion as sub- judges, District Judges, etc. as at present prevalent in the Subordinate Judicial Service of the States. « C Cqntinuation of 4.4. In some states, the local Nyaya Panchayat laws provide for voluntary exlstms Nyaya submission of disputes for resolution of Nyaya Panchayats constituted under the P°'"°hay'" 13"' local law. The jurisdiction is minimal and has hardly been proved to be effective. However, if voluntary submission of jurisdiction to such Panchayat can be retained without in any way impinging upon the new forum herein suggested, no exception need be taken to it. « ' .

PE 1 f I t 4_.5.'_To provide effective peo'ple'_s participation in the administration _of justice, bdfep': fofgﬁgginﬁ the District Magistrate and the District and Sessions Judge for each Districtshould mm of panchayat draw up a panel of laymen from respectable residents in villages comprised in the Judges. district having educational attainments preferably upto a University degree or at-

least a Higher Secondary School Leaving Examination. It is not intended to ex-

clude marginal farmers, farm workers or other local residents from being empanel- T led and it would be in the discretion of the District Magistrate/District~ Judge to include such persons even if they do not possess necessary educational qualiﬁcations. Depending upon the size of each Taluka/Tehsil, the list of panelists may vary from ten to twenty. The list should be'got approved by the High Court. Provision may be made in the law that the High Court should approve the panel within a speciﬁed period and shall be deemed to have been approved after the expiry of the period.

"'. See for a comprehensive Critical Review of Nyaya Panchayat System : U. Baxi; The Crisi. of the Indian Legal System, (1982), Ch. 10, pp. 295-327.

57'

4.6. Whenever a dispute is brought to the Panchayat Judges having his head- Composition of 7 quarters at Taluka/Tehsil level, he would ﬁrst proceed to select two from the panel tI."'"°h3Y".' C°""' ' of laymen drawn up as afore-mentioned, keeping in view the fact that their inhabi- °r spmﬁc ma' tant must be as far away as possible from the geographical location of the dispute. The Panchayat Judge and the two members of the panel will constitute a Nyaya Panchayat for the disputes. This constitution of Nyaya Panchayat will. have legal expertise. and people's participation and would avoid caste, communal, or political contaminations.

4.7. Keeping in view the nature of the dispute, the Panchayat Court shall» Procedure.

after notice to parties, assemble in the village where the dispute has arisen or if it is not accessible, then in the nearest village, accessible by public road transport, hear parties, examine witnesses, if any, produced making a brief note of the evidence and dispose of the dispute there and then on the same day. In 90% of the disputes tlfrisdprocedure will provide adequate safeguards for judicial and judicious disposal o isputes.

4.8. The Panchayat Judge shall be provided with a transport vehicle preferably Transport to be a jeep so that he can frequently move to the villages for on the spot disposal of the P'°"'d°d *0 "W cases. Simultaneously, the vehicle must be made available to the other two Mem- Panchayat Judges' bers of the Nyaya Panchayat for attending the court wherever it is to be held. This will save such voluntary Members from incurring cost and wasting timein reaching the place where the court is to be held.

4.9. If the two Members of the Panel constituting the court with the~P'anc'nayat Employed lay mem- Judge are employees/working on wages, it is necessary to provide either that while be" 0' Panchiwat working as the Members of the Panchayat, they are deemed to be on duty and should d:fm°d '° b° °"

not suffer loss of wages or alternatively they must be paid daily allowance not less ' than the daily minimum wage earned by each of them.

\ 4.10. Order XXI (Execution) of the present. Code of Civil Procedure has been Execution oforders variously described by the High Courts as lawyer's heaven and the starting point °f NW3' P3119118' of all the torture of the successful litigant. To avoid this tragic outcome, a decision ya ' of the Nyaya Panchayat must be immediately executed so that justice is effectively rendered. If the Nyaya Panchayat itself can there and then execute the decision, namely, a water passage or a cart road is to be prescribed by putting it on the paper and asking the revenue authority to map it_out. In all other respects, it can take the assistance of the local ofﬁcers of the revenue department and the development department as it suits its requirement for effective execution of its order.' 4.11. The jurisdiction of such Nyaya Panchayats would extend to all disputes Civil Jurisdiction \ falling within the various heads set out in paragraph 2.7. To substantiate wide of Nyaya Pan- jurisdiction sought to be conferred on Nyaya Panchayats, it may be stated that in 'hayw- its Fourteenth Report, the Law Commission recommended that the civil jurisdiction of Panchayats should be Rs. 200 /- or Rs. 250/- and with the approval of the High Court their jurisdiction may be increased to Rs. 500/-. If the value of the rupee in 1954 is compared to the present value, one can easily confer jurisdiction upto the value of Rs. 10,000/- Therefore, it is best not to prescribe any pecuniary limits as the jurisdiction and all the disputes comprehended in the afore-mentioned heads must come within the purview of the Nyaya Panchayata ' 4.12. Similarly, in respect of the criminal jurisdiction, the 'Law Commission in Criminal jurisdic- its Fourteenth Report recommended that Nyaya Panchayat should have jurisdic-tion of Nyaya tion limited to incfliting a ﬁne of Rs. 50/-, applying the same measure, it must have Pa"°h"'Y"'- jurisdiction to try all petty offences which foremerly a Magistrate of First Class was competent to try and must have power to inﬂict sentence of imprisonment also.

This change is desirable, because the Nyaya Panchayat will now be composed of a legally trained Judge also.

4.13. While hearing a dispute, the Judges will evaluate and appreciate the Simple p,'(,°,d,,,e evidence and the Panchayat Judge will render assistance with regard to simple for- for the resolution mulations of law relevant to the dispute. Ordinarily, the Nyaya Panchayat will try of disputes- to resolve the dispute by consensus. A decision by majority should not be ruled out.

The decision must be drawn up in the local language supported by brief reasons.

4.14. When the dispute is before the Nyaya Panchayat, ordinarily, parties Appearance of1aw- should be discouraged from enagaging lawyers but if any party chooses to engage yer not favoured. one, the lawyer so engaged may be heard but on no account an adjournment shall be granted for his accommodation nor the venue of the hearing be changed to acco- mmodate him.

86-M/P(N)44lM0fLJ&CA--'5la) 58 Revision aeninst 4.15. Even though the Law Commission of India in its Fourteenth Report i,?m§a'3':.9t'sC:l{m deprecated any suggestion of an appeal or revision against the decision of the ' Nyaya Panchayat, it is necessary to provide for one revision petition to the District Court in the initial stages for correcting errors of law.

Exclusion of certain 4.16. At present a unique experiment is being carried on by Anand Niketan 81,085 Whcfe 530"?" Ashram, Rangpur, covering literally number of Talukas where voluntary Lok Adalat ""1t'ici'fa°3grll°sare is functioning successfully. This was initiated by one Shri Harivallabh Parikh.31 §f,'¢¢,ssfu,. Similar experiment with a slight variation is_being carried on in Dholka Taluka. It was initiated by Ravi Shanker Maharaj and» Muni Santbalji. If people in these and similar areas where such successful experiments with peoples participation in the administration of justice are carried on, so desire, it would be open to the autho- rity to exclude these areas from the operation of the Nyaya Panchayat that may be set up as herein envisaged. Drawing inspiration from the success achieved by tl:

Lok Adalats in Gujarat which at present is a voluntary effort sustained by the local Legal Aid Committee, some Lok Adalats were convened invarious cities of Uttar Pradesh. A Lok Adalat presided over by retired Judges of the Delhi High Court was convened in Delhi for settling claims of victims of motor accidents. The attempt is to give it a concrete shape and form. - . ' Impact on appeals 4.17. It is hoped that a large number of disputes will be resolved by consensus to District Court. and the feed stock for appeals in the District Court will be considerably reduced with the result that it will have an impact on the reduction of arrears in the District Courts as also in the High Courts.

4.18. The Law Commission invites views/comments on the subject with spe-

ciﬁc reference to the question whether there is need to constitute a body variously described a Nyaya Panchayat, Lok Adalat, Jan Panchayat, People's Court in rural and semi-urban areas on the lines indicated in the preceding paragraphs.

Views invited.

'1. See U. Baxi, 'From Takkar to Karar :The Lok Adalat at Rangpur, A Preliminary Study' 10 Journal of Constitutional ..nd Parliamentary studies, (1976), pp. 52-116, at p. 54.

APPENDIX II WORKSHOPS Participants 'O00 _~lo«t.n.b.uaN._.

25.

25. 2-).

28.

29. DELHI--18tn and 19:11 January, l_986.

. Sh. G.R. Rajgopaul.

. Justice V.R. Krishna Iyer.

. Justice 0. Chinnaiapa Reddy.

. Prof. Upandera Baxi.

. Justice M.L. Jain.

. Prof. N.R. Madhava Menon.

Prof. J .S. Gondhi.

J .N.U. . Sh. S.S. Vats.

. Mrs. Khullcr, D.S. Planning Commission.

. Sh. Punnuswamy.

. Sh. Sivaramayya, Law Faculty.

. Sh. Bose Law Faculty.

. Mrs. Swaroop, D.S. Planning Commission.

. Sh. M.P. Singh.

. Mrs. Kapila Hingorani, Advocate.

Justice, Rajindcr Sachar.

. Sh. Pawan Chaudhary, Advocate.

. Mrs. Jose Verghese.

. Mr. K.L.Sharma, J. N. U. . Sh. D.V. Malhotra, Sub-Judge. ' . Prof. K.S. Shukla, Indian Institute of Public Administration.

. Mrs. Chandramani Chopra, Advocate-cum-Teacher.

. Dr. Sundram, Joint-Director, Planning Commission.

. Mrs. Pinki Anand, Advocate.

Mrs. Urmila Kapoor, Advocate, Supreme Court.

Mr. S.N. Kapoor, Addl. Distt. & Sessions Judge.

Sh. Gupta.

Sh. Ramanuja, Sh. Krishan Kumar, Advocate.

11. u--I (II . Prof. A.K. Kaul.

. Mr. O.P. Shukla.

. Sh. Krishan Kumar Mahajan, Journalist.

Sh. P.D. Mathew.

. Prof. Mohanty.

Sh. Pande.

Sh. Kateswar, IIIrd Year' LLB. Student.

Sh. Irovi.

. Mrs. Usha Kumar, Advocate.

. Mrs. Messy, Litigant.

SALEM--lst and 2nd February, 1986 . Prof. R.V. Dhanpalan, Central Law College.

. Justice S.T. Ramlingam, Judge, H.C. of Madras.

. Sh. K.A. Palaniswamy, Advocate.

. Sh. R. Manikam, ' Chief Metropolitan, Magistrate, Madras.

. Sh. A.P. Chinnaswamy.

Advocate.

. Sh. Vanniyar Adigalar.

Social Worker.

Sh. D. Gangappa, I.A.S. . Sh. Henry Thiagaraj, Madras.

. Sh. Thangamani, Distt. & Sessions Judge.

. Sh. E. Padmanabhan, Advocate, Madras.

Mrs. Asha Latha, Advocate, Madras.

Miss Radha Srinivasan, Advocate, Madras.

. Sh. Kalyanam, Member, Gold Control, Tribunal.

. Sh. Thulasi Das, Advocate.

. Prof. Thirumalai, Salem.

Sh. K. Govindrajan, Advocate, Madras.

o--A 9°

20.

22.

23.

24. u-A C p_A put 8 n--- »--A 5-: v-Ar-I--r-s--

.'° 9° >' .°'5":"P'!"

Sh. C. Natarajan, Advocate. ' Sh. K.A. Penchapakeshan, Madras.

Sh. Krishna Kumar, Pondicherry.

Sh. 'V. Arulappan, Advocate.

. Sh. N. Gandhi, President, Madras H.C. Bar Association, Madras. ' Prof. D. Vijayanarayana Reddy, Deptt. of Law, Nagarjun University.

Dr. K.N. Chandrasekaran Pillai, Reader, Deptt. of Law, University of Cochin.

Prof. P.G. Viswanathan, Central Law College.

Salem.

JAIPUR--1st and 2nd March, 1986 . Sh. D.D. Achareya, Minister for Irrigation, Power and P.W.D. . Sh. Harideo '1 oshi, Chief Minister of Rajasthan.

. Mr. Justice G.M. Lodha.

. Sh. Dev Narain Thanvi, Advocate.

. Sh. N.L. Jain, Advocate General.

' Sh. Jagdip Dhankar, Advocate.

Sh. Mardul Mridhur.

. Dr. Raghav Prakash.

. Sh. Ram Krishan Kalla, Advocate.

. Sh. N.S.H. Gupta, Lecturer, Law College.

. Mr. Justice S.N. Bhargava.

Mr. Ramesh Purohjt.

Prof. S.L. Jain.

Sh. Satya Vrat.

Sh. Dhani.

Sh. Durga Lal Baoddar, Adovocate. -

Sh. J.P. Vyas, Assistant Professor, Law.

Sh. G.S. Singhur, Advocate.

Sh. Poonam Chand Kandgawat.

. Mrs. Sunita Satyarth, Advocate.

26.

27.

28.

29.

30. Rx) CAUI-bu.) >-|>-'r--|L--

Ut:bbJkQ l\)l\)»---:-u-->-A 62 . Sh. S.N. Sharma.

22.

23.

24.

25. Prof. G.S. Sharma.

Mr. Justice Dave.

Sh. R.S. Verma.' Sh. Ugam Raj Bhandari, Retired Districtrand Sessions Judge.

Mrs. Kamla Jain.

Sh. R.P. Pahwa, Assistant Professor of Law.

Sh. N.D. Sharma.

Dr. S.K. Khumbas.

Mr. Justice M.L. Shrimal, Lok Ayukt.

VARANASI--15th and 16th March, 1986 . Sh. Udai Shankar Pandey.

. Sh. Krishan Deo Singh, ~ Advocate.

. Sh. Surcsh Prasad.

. Sh. Prem Bhai.

. Sh. Nagendra Prasad Singh.

. Sh. Sagar Singh, Advocate.

. Mr. A.H. Khan, Reader in Law.

. Sh. Gauri Shankar.

. Sh. K.N. Verma, , Advocate.

. Dr. M.P. Singh, Reader in Law, B.H. U. . Sh. R.S.Jaiswa1, Lecturer, Law School.

. Dr. R.A.'Ma1viya.

. Sh. Yogendra Singh.

Sh. B.N. Mohilla:

. Sh. Ganesh Dutt Dubey.

District Judge.

Sh. Sah. ' ' » Prof. R.K. Mishra.

. Sh. S.N. Mishra.

. Kumari Abha Trivedi.

. Sh. A.B.L. Srivastav.

. Sh. Brahm Prakash, Advocate.

. Prof. Krishan Bahadur.

. Sh. B.S. Nirmal.

. Sh. Dharamsheel Chaturvedi. , . Sh. Som.

. Sh. S.K. Singh.

. Dr. U.C. Sankla.

. Prof. Satyendra Tripathj. A . Sh. Asha Ram Tiwari Pradhan.

I-'I|--lt-I N--oven

30.

. Sh. Ram Shankar Mauriya.

_32.

33.

34.

35.

36.

37.

38. na

0) >1.

25.

26.

27.

28.

29. '§33B'£>"~2 5 S8; 333 .. 63 S11. Kishore.

Dr. Muniruddin Lohta.

Sh. Shiv Narain Srivastava.

Sh- Ram Subey,Singh.

Sh. Ram Pradhan.

Sh. Sita Ram Singh.

Sh. Suresh Prasad.

Sh. Lallan Prasad Sanghat.

RANCHI--22nd and 23rd March, 1986 . Sh. Justice S. Roy.

. Sh. Kameshwar Prasad, Advocate.

. Sh. A. Sahay.

. Dr. Schitanand, V.C. Ranchi Uni.

. Sh. RN.» Trivedi, Head of Political Deptt., Ranchi University.

. Sh. Prem Shankar Dayal, ' Advocate.

Justice, M.M. Prasad.

. Sh. Sartaj Sharma. _ . Sh. Vipun Nath Samant.

. Sh. N.K. Narayan.

. Sh. Arjun Singh.

. Sh. C.D. Choube, Advocate.

Sh. K/ameshwar Nath, Advocate.

Sh. Bama Pato Rundra, Advocate.

Sh. C.A. Guriya.

. Sh. Rajaji and Kiran Guria.

. Sh. Kale Munder, 'Sarponch.

. Sh. MasiP1;akash Guriya, Mukhiya.

. Sh. Jakhariya Pahan.

. Dr. N.K. Lall.

. Sh. Jai Govind Verma.

. Dr. K.N. Sahai, 4 . Sh. Purshottam Das Boni.

. Sh. Samanta, Advocate.

Sh. Narendra Kishore Natain.

-Sh. Arvind Prasad.

Sh. Rajani Kumar Singh, Advocate.

Sh. Jagat Mani Mahto.

Sh. Ashwani Kumar.'

30. Sh. Sudershan Pandey.

32.

33. 64 . Sh. Satendra Singh, Labour Court Judge.

Sh. K.N. Giri.

Sh. R.K. Prasad.

CALCU'I'I'A----29th and 30th March, 1986. . Justice A.K. Sen Gupta, Judge, H. C. of Calcutta.

. Dr. (Mrs.) Sarla Ghosh.

. Sh. G.R. Bhattacharya, D.J., Howarh.

. Sh. Mangalmoy Sarkar.

. Sh. B.K. Das, Advocate.

. Mrs. Mina Das, Secretary, Nistha. ~ . Sh. Prabir Kumar Gupta, Deputy Magistrate, North 24 Pgs.

. Sh. Moti Lal Bera, School Teacher.

. Sh. P. Dutta, Asstt. Legal, Remembranoer, West Bengal.

10. Sh. Gobordhan Bhattacharya. ' :-

3*' I-1 .

H3335 . Sh. A.R. Singh.

Advocate, Ranchi.

Sh. Sudhir Mandal, Secretary, B.U.P. . Sh. Biswanath Bajpaee, Advocate.

. Justice M.M. Dutt, Judge, S.C. . Mrs. Shanti Dutta, Principal.

. Sh. Raktim Mukhopadhyay, ' Hon. Director, B.U.P. Dr. L.K. Khanra, Calcutta.

18. Sh. Ram Kishore Prasad, r--

22. Advocate.

. Prof. A.K. Mitra.

. Justice R.N. Pyne, Judge, H.C. of Calcutta.

. Prof. Sachidananda Maity, Midnapore.

Dr. Sudhendu Mukherjee.

23. Prof. Gitanath Ganguly, Law College, Calcutta. -

24.

25.

26. ' 27.

28.

29.

36.

37.

38.

39. 65 Sh. Rabindra Nath Rocychowdhury, Howrah.

Sh. K.L. Rathi, Purulia.

Sh. Banndra Bhushan Nandy.

Sh. Amiya Kumar Saha.

Prof. Mrs. Arati Ganguly.

Litigants (Ladies) Justice B.P. Banerjee, Judge, .

H.C. of Calcutta.

Sh. Bikas Ch. Ghosh, Former Chief Judge, Cit Civil & Sessions Court, Ca cutta.

Sh. Ashwani Kumar Sinha, Advocate, Ranchi.

. Sh. Satyendra Singh, Judge, Labour Court, Ranchi.

. Justice Mukul Gopal Mukherjee, Judge, Calcutta H- C. INDORE--5th and 6th April, 1986 . Sh. Joshi, President, High Court, Bar Assoc.

2. Dr. Manohar Lal Dalal.

. Justice R.K. Verma, Judge, ' H.C. Bench at Indore.

. Sh. M.A. Khan, Advocate. .

. Justice Mouley, I-I.C. Bench at Indore.

. Sh. K.L. Schti, Advocate.

. Sh. P.G. Anikihandi, Advocate. .

. Sh. D.M. Kulkarni, Advocate.

. sh. Yashwant Kulkami, Advocate.

. Sh. S.K. Gangele, Advocate.

. Dr. U.R.K. Rao.

. Sh. Sc. Kansal.

. Justice Gyani, Judge, H.C. Bench.

. Prof. G.C. Kasaliwal.

. Prof. C.S. Chhaze.

. Sh. M.D. Arya, Advocate.

. Mrs. S. Joshi, Advocate.

. Sh. S. Joshi, Govt.

Advocate.

APPENDIX III A. State Governments F-'iﬁlilih-I ;t>un>-o\o9o\iosu.,.:.~.wn...

. Government of Rajasthan (Judicial Department).

. State Law Commission, Government of Meghalaya.

. Governmentgof Meghalaya (Law Department).

. Government of Orissa (Law Department). ' . Government of Karnataka (Department of Law and Pa_rliamentxry_Aﬁhirs) . Government of Madhya Pradesh (Law & Legislative Department).

. Goyernment of Mizoram (Law and Judicial Department).

Government of Punjab (Department of Legal and' Legislative A'ﬂ'airs).

. Government of Bihar (Law Department).

. Government of Arunachal Pradesh (Law & Judicial Department). . Government of Maharashtra (Law and Judiciary Department).

. Government of Kerala (Law Department).

. Government of Andhra Pradesh (Law Department).

Government of Jammu and Kashmir (Law Department).

B. High Courts and Judges of the High Courts.

1. U)

10. ll.

12.

14.

15. Justice P.B. Sawant, High Court of Bombay.

. Justice Kamleshwar Nath, Allahabad High Court.

. High Court of Orissa.

. Justice Guman Mal Lodha, Rajasthan High Court.

. Justice V.S. Dave, Rajasthan High Court.

. High Court of Gujarat.

. High Court of Madras.

. Justice S.T. Ramalingam, High Court of Madras.

. Justice A. Raghuvir, High Court of Andhra Pradesh.

Justice David Annonswamy, High Court of Madras. / Justice Gulab Chandra Gupta, High Court of Madhya Pradesh Jabalpur (M.P.).

Justice 1>.c. Jain, Rajasthan High Court, Jaipur.

. Justice K.N. Misra, High Court of Allahabad.

Justice J.R. Chopra, Rajasthan High Court, J odhpur.

Justice S.M. Jain.

Rajasthan High Court, Jodhpur. A 67 68 C. District Judges

11.

13.

15. Shri M.S. Vaidya, District & Sessions Judge, .

Akola (Maharashtra).

. Shri H.B. Padate, District & Sessions Judge, J algaon (Maharashtra).

. Shri A.B. Palkar, District & Sessions Judge, Solapur (Maharashtra).

. Shri'P.'N.S. Chauhan, Distt. .&: Sessions Judge, Mandasaur (M.P.). S .' Shri R.M.-.Bapat, District & Sessions Judge, Ratnagiri (Maharashtra).

. Shri'K.K. Verma, District-& Sessions Judge", Balaghat (M.P.).

. District & Sessions Judge,.

Indore (M.P.).

. Shri V.A. Kamkanwadi, District & Sessions Judge, Satara (Maharashtra).

. Shri P.V. Nirgudkar, District & Sessions Judge, Thane (Maharashtra).

Shri R.P. Awasthi, Distt. & Sessions Judge, Damoh (M.P.).

Shri P.V. Namjoshi, Third Addl. Judge, District Court of Damoh (M .P.).

. Shri G.K. Kulshreshtha, District & Sessions Judge, Vidisha (M.P.).' Shri S.S. Dami, District & Sessions Judge, Ahmednagar (Maharashtra).

. Shri Prakash Mehta, -

District & Sessions Judge, Bilaspur (M.P.)..

Shri M.B. Majumdar, District & Sessions Judge, ' Sangli (Maharashtra).

18.

20. . 'Shri V.N. Nimbalkar, District & Sessions Judge, Parbhani (Maharashtra).

. Shri P.K. Chavare, 2nd Additional District & Sessions Judge, Parbhani.

Shri P.P. Bafna, , , Additional District & Sessions Judge, Parbhani. ' . Shri Ranganath Rath, District & Sessions Judge, Dhenkanal (Orissa).

Shri Sundar Lal Mehtra, Judge, Family Court., Jaipur.

' D. Bar Councils/Bar Associations"

1. . Bar Council of Rajasthan, Jaipur.

f3'5":"'*"° Sangli Bar Association, Sangli. .

. Bar Council of Orissa, Bhubaneshwar.

Bar Association of Khurai, Sagar (M.P.).

Bar Association, Kavathe-Mahamkal, District--Sangli (Maharashtra).

Bar Coucncil of Tamil Nadu,, Madras.

Satara District Bar Association, Satara. , Cuddalore Bar Association:

Cuddalore.

. Bar Association of Tiruchengodu, \ District-Salem, Tamil Nadu.

Salem Bar Association, 'Salem.

Bar Association of Tiruvallur.

Bar Association, Sagar (M.P.).

E. Associations

1.

2.

' Bombay. ~ . Institute of Public Affairs, ' Rajasthan Judicial Service Oﬁicers' Association, Jaipur.

Progressive Law Association, Madhuban.

Indian Procedural Law Orientation' Association, Sangli (Maharashtra).

. A.P. Democratic Lawyers' Association, Hyderabad. . United Artists' Association, Ganjam (Orissa).

. Common Cause, New Delhi.

. Greater India League, Bangalore.

. Delhi Hindustani Mercantile Association.

Delhi.

. Haryana Legal Aid to the Poor Committee, Chandigarh.

. All India Ambedkar Peoples Movement.

. Social Action Interest Litigation, Ranchi. \ . The All India Federation of Scheduled Caste/Tribes, Backwards and Mino.

rities Employees Welfare Association, New Delhi.

14. Sanjivayya Institute of Socio-Economic Studies, New Delhi.

'70 F. Advocates ' 1. Sh. M.A. Khan,

4. ll.

/ / Indore (M.P.).

2.\Sh. Ugam.Raj Bhandari, Jaipur.

Sh. R.R. Prasad, ' Ranchi.

Sh. V.M. Tarkunde, New Delhi. ' . Sh. G.L. Sanghi, New Delhi.

. Sh. S.K. Sundaram, Madras.

. Sh. G. Lingareddy, Guntur (A.P.).

. Sh. A.C. Pathak, Nava Dahora, Broad, (Gujarat).

Sh. Syama Sumer Salon, Gandhi Nagar, Berhampur (Orissa).

Sh. Mahabalishwar N.,Mo1je, Bombay.

Shri K.N. Varrna, Varanasi.

G. Individuals

1. Sh. Phiroze Amroliwalla, Bombay.

Sh. K.P.S. Mahalwar and 7 Shri P.C. Juneja, Maharashi Dayanand University Rohtak (Haryana). . "

. Sh. Ras Mohan Tiwari, Pali, Ranchi.

Dr. M. Narayanaswamy, Madras.

. Sh. H.D. Shonrie, New Delhi.

. Dr. Paras Diwan,' Chandigarh.

. Sh. Dharam Pal Mehta,' Faridabad.

. Sh.' Shamshad Ahmed, Lucknow.

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