Criticism Of The Nyaya Panchayat Bill

Article 39A of the Constitution mandates that the opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities in the administration of justice, which essentially means that every Indian citizen deserves heard and be represented irrespective of his social stature. Mahatma Gandhi once said that India was a land of villages, the veracity of this statement in the present context is very debatable as urbanisation has become synonymous with development. Development can be judged in terms of accessibility to the basic human requirements and justice is one of them. Rural Indian still suffers from deficiency of literacy, unemployment and several other social disorders, the difference between right and wrong continues to dissipate and with formal intervention from the government things only get worse. The social pillars like judiciary tend to lose its relevance in the absence of knowledge which only furthers the alienation. To counter such anomaly many social scientists have come up with concept of decentralization. Lord Rippon in the early 19th century gave the concept of decentralization as means to educate Indians in the self-governance [1] . It was in the post-independent India that idea of decentralized governance started catching people’s imagination an idea which promised a prosperous and self reliant rural India. In order to come up with a proper framework for the local self government a working committee headed Mr. Balwant Rai Mehta was appointed which reported that by the entire system can be given a new meaning by linking it up with elected representatives and its decision making bodies [2] .

One of the active components of the rural self government would be its judicial system in this case the Nyaya Panchayat. Nyaya Panchayat is a form of alternative dispute resolution mechanism. To have something of this nature at the rural level would lead to easing of lot of pressure from our already burdened judiciary. The word ‘Panchayat’ means a group of village men who command respect from their community and the word ‘Nyaya’ means justice. Therefore when a dispute is resolved by the village heads or elders who are respected and trusted by the parties to a dispute through a mutually acceptable settlement may be termed as a ‘Nyaya Panchayat’.

In order to bring certainty to the cases pending and reduce the backlog the government has introduced various Alternative Dispute Resolution mechanisms like Section 89 of Civil Procedure Code, Lok Adalats. Nyaya Panchayat is one of the scheme were the authority of judiciary devolves to a much simpler body of a rural Panchayat. Article 39A of our constitution talks of access to justice for all [3] , however it is the parts of Directive Principle of State Policy, which is unenforceable by the courts. However by introducing the Nyaya Panchayat Bill the government has taken a proactive step towards the idea of decentralisation of authority [4] .

In this part of the essay the researcher aims to critically analyse the bill and put up his own suggestions in lieu of the defects, if any found. Different type of the problematic areas have been highlighted in the following part keeping the future of the system in mind.

Critical analysis of the Bill

Separation of power:

The primary question that one can raise is regarding the issue of separation of power. Is the legislative body fiddling unnecessarily with the judicial system by bring it under the purview of elected body. As per the Bill the members of the board are to be elected. Who, in turn will be handling affairs related to judiciary. Bill declares District Collector or the District Magistrate or the Head of the District Administration or any officer authorized by him as the “Presiding Authority”. One can rightly argue that the appointment of an executive body to oversee the authority of the judicial wing is against the Principle of Separation of Power [5] . It also undermines the authority of the elected representatives of people. In order to avoid question of constitutionality of the provision it is suggested that the High Court through District Judge can be the “Presiding Authority” or the Executive i.e. the “Presiding Authority” can be monitored by the High Court in respect of exercise of his power relating to Nyaya Panchayat. It is also relevant here to mention that the Supreme Court in the case of L. Chandra Kumar [6] has clearly laid down that judicial review is a fundamental feature of the Constitution and it cannot be taken away by the Constitution or Constitutional Amendment. Therefore there are chances that Clause 5(3) of the Bill, which provides that “the Presiding Authority on disqualification shall be final and binding and not subject to any review or appeal”, has potential to cross the lines of dicta of the Section 67 of Himachal Pradesh Act, 1994 29 Section 109 (1) Bihar Act. Section 31 Chhattisgarh Gram Nyayalaya Adhiniyam, 1996 31 Section 74 Jammu And Kashmir Panchayati Raj Act, 1989

Reservation

Clause 3 of the Nyaya Panchayat Bill, 2009 deals with composition of the body. It states that every NP shall have a five member body directly elected from the village population, however there is also provision for reservation for women and Schedule caste /schedule tribes. Given the number of seats for the board members and the provision for the reservation one realises that the total number of the reserved seats are 3 out of 5 which more than 50% is. This part is definitely extra constitutional and can be shot down in the court of law. Another question which comes in my mind is whether it would be wise to provide a reservation based on the caste distinction, as of now rural India is already in the grip of caste distinction related problem and to put someone in the position of authority only because he/she belongs o particular caste or tribe would be in a manner furthering of the problem [7] . With caste politics involved the primary objective of providing quicker and simpler means of dispute settlement will be diluted.

Provision for Nyaya Sahayak:

Chapter III, clause 9 of the Bill deals with Nyaya Sahayak and his/her eligibility criteria the idea behind having a Nyaya shayak is to have someone to assist the NP and the parties in the disposition of justice. The yardstick for selection and later the performance of their duty is very vague as for the matter of selection for the post of Nyaya Shayak one needs to merely be a literate, which makes sense keeping the level of education in the rural areas, however the clause 10 which talks of the performance of their duty clearly states that they need to provide legal opinion and take jurisprudential approach in the dispute resolution. Provisions like this would clearly lead to several appointments related issues. Instead of having a provision which appears to be confusing and half baked it should appoint someone from formal legal background a practicing lawyer or even paralegals for that matter. It would much easier to monitor the workings of NP qualitatively.

Qualification and Disqualification of the Members of the Nyaya Panchayat:

The election for the members of the NP should not be carried out under the shadow of the political parties. The clause 4 and 5 which deals with the qualification and disqualification does not talk of any such provisions through which one could eliminate the risk of the election being manipulated by the political parties. In order to secure this system form such intervention the disqualification clause should also lay down the guideline that no person representing a political party can qualify to be the member of the NP.

“One e.g. can be found in section 10 of M.P Gram Nyayalaya Adhiniyam, 1996. A provision can also be made that any person who contests for NP seat should not have stood for any election before his candidature or after his term as Nyaya Panch” [8] .

Jurisdiction of the Nyaya Panchayat:

Clause 12 and 13 of the Bill talks about the duties and jurisdiction of the Nyaya Panchayat respectively. At the very outset the researcher believes that the power given to the NP is way too excess then a elected body is capable to perform. In order to do justice to the entire array

of jurisdictional power given to the NP, the members of the body have to be trained in manner of judicial magistrate [9] . With their jurisdiction in both civil and criminal matters it would be a way too much of presumption of them giving a fair hearing. Even though there are provisions of appeal available to the people but the entire idea of quicker and cheaper means of justice would be lost with compromise in the quality of people on the judge’s chair. Clause 13 (a) and (b) deals with the exact nature of civil and criminal jurisdiction of NP under the bill, on a closer look it becomes apparent that the number of Sections deals with offences, which are non-compoundable, punishment of these offences can be either fine or imprisonment. As per the Bill the NP can only impose fine and in case the offence requires imprisonment the matter would be referred to the nearest court under whose jurisdiction the area falls under.

Lack of Clarity on Modes of settlement of dispute:

The idea behind having an alternative dispute resolution mechanism is to swerve around the hassles of our judiciary, to cut down on unnecessary delay and make it more people friendly by keeping the mechanism simple and economically viable for its target users. In the given case we are talking about the mechanism for dispute settlement adopted by the Nyaya Panchayat. Clause 14 (1) of the bill, “The Nyaya Panchayats shall follow persuasion, conciliation and mediation as means to resolve disputes” [10] . Firstly, the bill does not prioritize between these three processes as the provision of Conciliation is followed by the provision relating to adjudication and settlement provisions, which came after adjudication. It is suggested that the adjudication should be the last process. The Bill is also not very clear as to the distinction between conciliation and settlement as a mode of resolution of dispute.

Evidence and Witnesses

There is unnecessary repetition in the bill as to the provisions relating to evidence and witness. Clauses 26 and 36 of the Bill, which deals with the evidence and witnesses, have been replicated.

These are some of the areas which the researcher found problematic. Despite these problems if legislators go ahead and pass the bill it would only lead to future complications. There would be rampant misuse of the system leading to its failure or least, ineffectiveness.

Nyaya Panchayat are judicial Panchayat established with the objective of providing a speedy and inexpensive system of justice to the villagers. Nyaya Panchayat are functioning in some states. by giving it a formal structure we are only realising our long term constitutional as well as social goal, however if the system that we resort to itself is fault and in non compliance with the constitution it will cause more problem rather than solving it.