RETHINKING PANCHAYATS: BRIDGING THE JUSTICE GAP AT THE VILLAGE- LEVEL

AUTHOR: KHUSHI PAWAR, NARSEE MONJEE INSTITUTE OF MANAGEMENT STUDIES, INODRE

ABSTRACT

The Indian Constitution envisages a fair, equitable, and easy access to justice for every individual. However, this seems to be a dream for the majority of the rural population. This paper explores the various prospects of bridging the justice gaps that restrict the rural communities from accessing justice. Among the various challenges that arise while delivering justice, two major challenges are- the availability of means to access justice and its quality. The major emphasis of the paper is on utilizing the potential of the panchayat systems to remove these challenges and help these communities access justice. The most striking feature of the panchayat system is its presence at the grass-roots level and its immediate connection (knowledge) with the problems faced by these communities, which can act as a boon in empowering them and serving justice to them. Along with the benefits, the probable challenges and barriers are also acknowledged in the paper. The outcome of the study incorporates the identification of the key challenges, the analysis of the effectiveness of these institutions, the role of panchayat systems, and certain policy recommendations. Overall, the study embraces various insights and ideas to empower these communities. In conclusion, the study addresses and identifies the critical significance of empowering the village and rural communities through access to justice and legal aid which will ultimately foster the development of a healthy, strong, and inclusive judicial system.

Keywords: Panchayats, access to justice, reforms, decentralized system.

BACKGROUND OF THE STUDY

Mahatma Gandhi always embarked on the fact that India’s future lies in its villages. Therefore, it becomes essential for us to shift our attention towards developing the villages which are the true foundation of India. In his words “The soul of India lives in its villages”. India’s development model sources its inspiration heavily from the Gandhian model of development which is evident from its numerous initiatives like the Swachh Bharat Abhiyaan, the empowerment of the village industries such as the khadi industry, the promotion of organic and sustainable farming, etc.

The idea of equitable access to justice through legal aid also revolves somewhere around the Gandhian principle of ensuring justice even for the most marginalized individuals in society. The most important element of his entire philosophy of village empowerment is “self-sufficiency” in every aspect. Emerging patterns demonstrate that we have taken steps in almost every direction to empower the villages to help them attain self-sufficiency but there exists a severe lacuna with respect to the accessibility of justice-delivering institutions particularly in villages and at grassroots levels, which keeps an all-encompassing mechanism of equitable access to justice a distant dream in India. This brings our attention towards equipping villages with a resilient justice delivery system at the grass-root level to enable them free and fair access to justice thereby promoting inclusivity.

Almost 65% of the Indian population resides in rural areas, which means more than half of its population forms a part of the rural demographic. However, there is a strong lack of an efficient and viable justice delivery system at the grassroots levels, abandoning such a large share of its population away from a readily available system of justice delivery and most importantly hassle-free access to legal aid. Even though the panchayats in India can have a significant role in ensuring this access, their potential has often been overlooked and could not be exploited to its fullest capacity. They often suffer from various roadblocks such as lack of financial adequacy, legal illiteracy, incohesive assimilation with judicial institutions, lack of support, etc. which results in unsuccessful outcomes, thereby increasing the burden of case pendency on the shoulders of the higher judiciary. This research aims to ascertain such underlying deficiencies, functional shortcomings, policy lapses in India’s grass-root level institutions and puts forth prospective and viable adjustments that could help in strengthening these institutions in serving justice while also promoting legal aid.

LITERATURE REVIEW

The relevance and significance of this topic is evident from the immense amount of literature which is already available on this topic. The challenges which hinder the performance of these institutions and the need to bring reforms to ensure a smooth functioning of these institutions were the major points of focus in all the previous research. Even the judicial precedents upheld the importance of making justice accessible by various means. Emphasis was put on reviving the original nature of these ‘indigenous’ institutions to make justice more accessible to the rural populace.

RESEARCH METHODOLOGY

This research is based on a qualitative and an analytical approach, deriving the data entirely from secondary sources to examine the current position of justice delivery and access to fair and equitable justice at the grassroots levels, while emphasizing the role of panchayats in making justice more accessible. It encompasses a deep analysis of constitutional provisions, other statutes, and judicial precedents, simultaneously, national and international reports, academic literature and a thorough analysis of various policies and schemes have also been taken into account. Ultimately, reforms have been suggested in the existing policies by identifying gaps and loopholes in the current legal frameworks.

A DIVE INTO THE HISTORY OF VILLAGE COURTS

The history of village-level reforms in the Indian judiciary can be traced back to the 1950s when the concept of Nyaya Panchayats was first introduced in India. Taking inspiration from the Gandhian idea of Gram-Raja to Ram-Rajya, attempts were made by various states to set up their panchayat systems after independence as well as to strengthen them, where they were already present. This stride took place around the late 1950s and early 1960s. Although India had the system of Panchayats for a very long time, this development built the very foundation of the Panchayat system in the post-independence era. Panchayats were assigned varied tasks including the regulation and maintenance of law and order at the village level. The concept traditionally involved the union of 5 respected members of the village community, including a Sarpanch (or the chief) who came together to resolve conflicts among villagers.

These village level units also consisted of small judicial courts known as Nyaya Panchayats, also known as Judicial Panchayats. These were responsible for adjudicating minor civil and criminal cases based on traditional values, customs, and norms and could also impose small fines, to provide quick and easy disposal of cases to the community members. They functioned on similar lines with the formal judiciary concerning the collection of relevant evidence, assembling witnesses, etc. One Nyaya Panchayat basically had jurisdiction over 7-10 villages, which can be said to be consisting of around 14000-15000 people.

These Nyaya Panchayats can be said to be more of an extended version of village courts in the British Colonial Era, which were responsible for performing both administrative as well as judicial functions.

NYAYA PANCHAYATS’ ROLE IN THE PRE-INDEPENDENCE YEARS

As also discussed earlier, the state governments made considerable attempts to revive the panchayats in order to empower them to deal with minor legal matters. It can also be seen that these panchayats operated as simple judicial tribunals. These Nyaya Panchayats carried out substantial works related to adjudication. For instance, between 1920 and 1947, the village panchayats in UP heard close to 1,914,098 cases out of which 1,894,440 cases were disposed of. Similar was the case with Bombay and Bengal.

CONSTITUTIONAL PROVISIONS REGARDING PANCHAYATS AND THE RECENT AMENDMENT

The Directive principles of the state policy or the DPSPs, though not enforceable, provide the essential guidelines to formulate laws, taking into account the welfare of the people. These constitutional provisions along with emphasizing upon the need for a fair, accessible, and equitable justice delivery system also provide for organization of village-level governance institutions for the development of rural areas. Article 39A deals with equal justice and free legal aid while Article 40 provides for the organization of village panchayats while enshrining upon them necessary powers to ensure smooth functioning and enabling self-governance, which also included Nyaya Panchayats as an important component of the village governance. The constitutional provision of providing free legal aid to underprivileged individuals gains its importance from certain landmark judicial precedents, where the significance of free legal aid was emphasized. In the landmark case of M.H. Hoskot v. State of Maharashtra, the court highlighted that free legal aid is an essential component of procedural justice particularly in the trial and appellate levels, and thus upheld it as a constitutional right. In the case of Sheela Barsa v. State of Maharashtra, the constitutional imperative of providing free legal aid to underprivileged was again emphasized by the court.

Additionally, the 73rd constitutional amendment also introduced several reforms for the strengthening and empowerment of these local institutions. Also, the interpretation of Article 50, which provides for the separation of judiciary from executive can be extended to include the village-level institutions under its scope in order to provide autonomy to these institutions in some aspects as well as prevent them from unnecessary pressure. Most importantly the right to equal access as well as speedy justice is very much a part of the right to life as guaranteed by the constitution under article 21.

The judiciary has observed in several case laws that the right to speedy justice stands as one of the most important parts of the right to life, even if it is not directly enumerated in the constitution of India. In the landmark case of Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, Justice P.N. Bhagwati noted that the broad interpretation of Article 21, which we have received from the famous case of Maneka Gandhi v. Union of India, has imbibed within it the right to speedy justice as well, and thus a person if deprived of speedy justice brings it under the preview of violation of the right to life.

One of the most important developments in this regard was the 14th Report of the law commission of 1986, which exclusively dealt with the reforms in judicial administration in India. This commission also dealt with the question of strengthening the village-level judicial institutions to make justice more accessible for people. Also, suggestions and recommendations were made to establish Gram Nyayalayas in order to ensure door-step justice delivery to people. While the Panchayati Raj Institutions got constitutional status in 1992, it was finally, on 22nd December 2008 the Gram Nyayalayas Act was enacted, which came into effect on 2nd October 2009, on the auspicious occasion of Gandhi Jayanti. These judicial bodies were enshrined with various powers to try civil and criminal matters. Moreover, conciliation between parties was the central point of emphasis, and separate financial assistance was also provided to these courts.

THE PICTURE PORTRAYED BY THE CURRENT SCENARIO

Currently, there are around 17 states with a total of 609 notified Gram Nyayalayas, Uttar Pradesh at the top consisting of 113 notified Gram Nyayalayas, followed by Madhya Pradesh with 89 and Telangana with 55 such notified institutions. However, there is a stark contradiction between the number of notified Gram Nyayalays and the number of operational Nyayalays. For instance, in Uttar Pradesh, only 100 of them are operational, while in Telangana this number is zero. Furthermore, talking about the pendency and disposal of cases, a total of 43,815 cases have been registered with these bodies, but conversely, only 3297 cases have been resolved to date. Additionally, Uttar Pradesh has the largest number of pending cases, i.e. close to 35,032. This is a cause of major concern especially in the context of village-level accountability of these institutions.

REASONS BEHIND THE FAILURE OF THESE INSTITUTIONS

A noticeable fact is that the Gram Nyayalaya Act, of 2008 established around 5000 Gram Nyayalayas in India, but today only a few hundreds of them are in function. This data suggests that this scheme of making the villages self-sufficient in terms of solving their judicial disputes was a futile one, which could not meet the expected results. The number of cases disposed of by these courts in itself is evidence of the fact that they acted as efficient institutions for delivering justice, at least in minor legal matters. But due to various inherent structural and systemic deficiencies, these institutions could not fulfill their purpose to the fullest potential. The most important problem with these institutions was that the elected members of these institutions were not proficient in handling legal matters because of a lack of expertise in handling these cases. Also, they were unaware of the proper legal procedures and principles followed while dealing with these cases, which ultimately led to improper and inefficient administration of justice. Furthermore, the villages in India often had various dissections and factions, the caste system still rooted in these areas, which was often seen as resulting in favoritism in deciding cases, again pointing towards a miscarriage of justice. There were a lot of personal biases involved. Many times, the leadership involved the influence of a charismatic leader. This also resulted in lack of trust being placed in these institutions by the villagers. Another indispensable factor in this regard is the presence and dominance of the elite and socially influential groups in the villages which often questions the neutrality of these institutions. They often suffered from financial crunches which acted as a hindrance in their efficient functioning. Another significant flaw which made them inefficient bodies was that there was a strong lack of effective enforcement mechanisms to impose their decisions, reducing their reliability. Another reason was the lack of properly demarcated jurisdictions between the formal judiciary and the village courts.

THE NEED TO STRENGTHEN THESE INSTITUTIONS

One of the most distinct traits of Panchayats is its ability to deal with the people at the ground level. They are the most basic units of rural governance. The presence of these institutions at the grassroots, the leaders are well aware of the problems of the people and thus can resolve them much more amicably than the other higher institutions can. This feature not only enables community engagement but also aligns itself with the very feature of participatory democracy, thus providing a groundwork for creating a more inclusive society. Gram Nyayalayas being an essential element of these village-level bodies, give a strong boost to increase the inclusion of community members in justice administration. The formal judicial institutions are already suffering with a major backlog of cases, which already keeps timely justice a far-fetched dream for individuals. These institutions can help in reducing these backlogs by resolving minor cases and thereby making justice easily accessible to these individuals. Moreover, these institutions resolve disputes at lower rates and in fact also promote out-of-court settlements. Thus there is a strong need to bring reforms in order to revive these institutions.

RECOMMENDATIONS AND THE ROAD AHEAD

The entire set-up suffers from various systemic deficiencies and deep-rooted structural flaws. These voids can be fulfilled by bringing reforms in these institutions. A top-down approach needs to be followed in order to bring changes to the system. Proper judicial training can act as a game-changer to bring efficiency in the justice delivery process. A clearly demarcated jurisdiction can help substantially in making these courts more effective while also maintaining the reliability of these institutions. Also, the enforcement procedure should be worked upon to increase the authority of their orders. Further, adequate funds should be allocated, resources should be made available, and the infrastructure should be improved. Monitoring mechanisms should be improved but only to the extent that they facilitate efficient functioning and not suppress the autonomy of these institutions. Additionally, in order to increase public participation and community engagement, people need to be made aware of the functioning and procedures of these bodies by imparting basic legal education in these communities.

CONCLUSION

The scope of research in this area remains significantly vast, essentially in exploring innovative and modern means and their integration at this level. It can be observed that the justice delivery system at the grass-root level needs systematic reforms in order to realize its fullest potential in its truest sense. It can only be achieved by proper institutional cooperation, with key policy changes along with taking steps to increase community engagement. Although efforts have been made by the governments to revitalize these institutions, most of them have not achieved the desired results. Invigorating grassroots justice is not just a legal necessity but a social imperative and the Gram Nyayalayas or other such village level judicial institutions can play a very significant role in easing out administration of justice at least at the rural and local levels.