guruswamy menaka, aditya singh_accessing injustice_gram nyayalayas act 2008

7/28/2019 Guruswamy Menaka, Aditya Singh_Accessing Injustice_Gram Nyayalayas Act 2008

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COMMENTARY

october 23, 2010 vol xlv no 43 EPW Economic & Political Weekly16

of behaviour and thinking. They are not

necessarily filled with self-doubt and angst

and waiting to come out, but are generally

comfortable in their places: be it a labora-

tory, an ivory tower, or the pedestal on

which they have been placed. There are

frequently conversations within science

(and society) regarding science itself, thenature of GM and the role of technology.

Such conversations, while insufficient can

be encouraged and supported by good

media. But technical reports such as the re-

cent one from the academies along with

the polarisation fanned by the media only

quell debate. And that is an injustice to

both science and society.

Notes

1 Bacil lus thuringiensis (or Bt) is a bacteria usedby farmers as an alternative to pesticides. Thegene for the Cry toxins are extracted and insert-ed into plants in the case of Bt transgene contain-ing plants.

2 A transgene is a gene or genetic material that istransferred from one organism to another using

various techniques. More specifica lly, it is oftenused to describe the segment of DNA that is trans-

ferred and can code for a particular RNA or pro-tein. This foreign insert may alter the expressionof a gene or trait in the organism.

3 A report by Andow A David,Bt Brinjal: The Scopeand Adequacy of the GEAC Environmental Risk As-

sessment, is based on the analysis of the expertcommittee and various supporting materials sub-mitted to seek approval for commercialisation ofBt-brinjal. The main thesis of the report is thatthe GEAC set too narrow a scope for environmentalrisk assessment of hybrid brinjal.

4 Plenty of articles have been written on epi-genetics. For special issues on the subject, see

Nature, Vol 447, Issue 714, 24 May 2007 andScience, 293, Issue 5532, 10 August 2001.

References

Gurien-Sherman, Doug (2009): Failure to Yield, Report by the Union of Concerned Scientists,Cambridge, MA.

International Assessment of Agricultural Science andTechnology for Development (2009):Agriculture

at a Crossroads: The Global Report (Island Press).Kumar, Ananda (2009): Br-Brinjal: A Pioneering Push,

Biotech News, Department of Biotechnology,December.

Krimsky, Sheldon (2004): Science in the Private Inter-est: Has the Lure of Profits Corrupted Biomedical

Research? Rowman & Littlefield Publishers, Inc.

Pearson, Helen (2006): What Is a Gene? Nature,Vol 44, 399-401.

Sood, A K, M Vijayan, P S Koel , M Rai, K K Talwar andA Datta (2010): Inter-academy Report on GMCrop, September, unpublished, downloadablefrom http://bit.ly/cQbyCI.

Accessing Injustice:The Gram Nyayalayas Act, 2008

Menaka Guruswamy, Aditya Singh

The Gram Nyayalayas Act, 2008

moves Indian citizens with small

claims, who live in rural areas,

out of the adversarial system withits procedural guarantees. As a

statute with limited procedural

guarantees to adjudicate allegedly

small claims, including those

that implicate a plethora of social

welfare legislations, this Act

compromises the promises of

the Constitution.

Equality and justice are indisputably

two key facets of the idea of a

modern, democratic and constitution-

adhering India. The principles of equality

and justice are realised by the Stateapparatus through the business of admini-

stration of justice. Indias justice system is

characterised by systemic problems,

including corruption, delays, pendency,

increasing costs, limited legal aid, and

a lack of appropriately trained lawyers

and judges.

When confronted with the many prob-

lems of the legal system, the governments

response has been not to invest in and fix a

broken system, instead it has responded

by moving out of the adversarial system

with its procedural guarantees, those who

have the least voice and use it minimally

Indian citizens, who live in rural areas,

with small claims, both civil and criminal

in nature. The government does this with

the passage of the Gram Nyayalayas Act,

2008 (hereinafter referred to as the Act).

This Act perpetuates the phenomenon of

two Indias that of the better resourced

urban citizen who can afford and has

access to the courts. And, the other Indiaof the impoverished the more dis-

connected rural citizen, who gets primary

access to forums that focus primarily on

disposing of their claims, minus the appli-

cation of essential safeguards of the legal

process lawyers, appeals, procedural

protections and evidentiary requirements.

The Act provides for the establishment

of nearly 5,067 gram nyayalayas or village

courts across the country. The avowed

objective is to provide access to justice to

the citizens and to ensure that opportuni-

ties for securing justice are not denied to

any citizen by reason of social, economic or

other disabilities. In his address on the eveof the National Law Day, the Chief Justice

of India underscored the importance of

this initiative as he asserted that this

would bring the justice delivery system

closer to rural citizens. Since a small

number of gram nyayalayas have become

operational from 2 October 2009, infor-

mation on the implementation of these

village courts is not available. Hence,

we discuss the provisions of the Act and

the problems associated with it.

The Gram Nyayalayas Act, 2008

This Act is not the first legislative attempt

at establishing a hybrid or informal tribu-

nal like system, ostensibly located in some

version of an indigenous system of dispute

resolution. Nyaya panchayats and lok adalats

were created with the same objective of

dispensing speedy justice in informal set-

tings. Galanter and Krishnan (2004: 789)

document and analyse the experiences

in nyaya panchayats and lok adalats(peoples tribunals). Both forums, derived

according to them from, sentimental and

We are grateful to Bipin Aspatwar,

Marc Galanter, Vikramaditya Khanna,

Madhav Khosla, and Jayanth Krishnan for

their incisive comments.

Menaka Guruswamy (menaka.guruswamy@

gmail.com) practises law at the Supreme Court

of India, Aditya Singh (mail.adityasingh@

gmail.com) is a final year student at the NationalAcademy of Legal Studies and Research,

University of Law, Hyderabad.


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COMMENTARY

Economic & Political Weekly EPW october 23, 2010 vol xlv no 43 17

symbolic support from appeal to the

virtues of the indigenous system (ibid).

They note that the informalism of the lok

adalat with its emphasis on compromise

and speedy disposal could disadvantage

weaker parties.

The lok adalats are not bound by of

Civil Procedure Code 1908 (CPC) and theIndian Evidence Act, 1872. According to

the authors, lok adalat judges appeared

to be overbearing and coercive to the

parties before them especially poor and

un-represented parties. The authors ob-

serve that critics of the lok adalats see in

these moves portents of a dismantling of

legality in favour of paternalistic, intui-

tive kadi justice for the poor. They add

further that

the absence of appeals, the exclusion oflawyers, and the shift of decisional stand-

ards from legal principles to principles of

justice suggest a major enlargement of the

presiding judges discretion and robust faith

that the poor have more to gain from benign

paternalism than from juristic or popular

legality (ibid).

The gram nyayalayas capture all the

weaknesses of the nyaya panchayats and

lok adalats, and the problems associated

with these forums would apply equally to

this most recent version of the ostensibleindigenous dispute resolution forum.

Intent and Jurisdiction

The Act provides for the establishment of

gram nyayalayas for the purpose of pro-

viding access to justice and to ensure that

speedy justice is not denied to any citizen

for reasons of social, economic or other

disabilities. The gram nyayalaya will be

the lowest court of subordinate judiciary

in a state and shall be in addition to the

regular civil and criminal courts. The Act

is broadly based on the recommendations

of the Law Commission of India, which

had in its 114th report suggested the estab-

lishment of such courts in order to pro-

vide speedy, inexpensive and substantial

justice to the common man.

Under the statute, gram nyayalayas are

to be established by the state government

in consultation with the high court. These

are to be established for every panchayat

at the intermediate level and will beheaded by a nyayadhikari, who shall have

the qualifications of a first class judicial

magistrate. The nyayadhikari is required

to periodically visit the villages under her

jurisdiction and conduct proceedings in

close proximity to the place where the

parties normally reside, thus functioning

as a mobile court.

Gram nyayalayas have both civil and

criminal jurisdiction much like ordinarylower courts. It may take cognisance of an

offence on a complaint or on a police re-

port and shall try all offences specified in

Part I of the First Schedule and Part II of

that Schedule and also try all such offenc-

es or grant such relief under the state acts

which may be notified by the state govern-

ment. Section 13 lays down the civil juris-

diction of the gram nyayalayas and pro-

vides that it shall have jurisdiction to try

all original suits and proceedings of a civil

nature falling under the classes of dis-

putes specified in Part I of the Second

Schedule and try all claims and disputes

which may be notified by the central gov-

ernment and by the state government.

Inadequacies of Gram Nyayalayas

The Act contains provisions which are

likely to result in the unjust exclusion of

the impoverished from just legal processes

thereby restricting access to justice.

(i) Nature of Offences within the

Domain of Gram Nyayalayas: Schedule I

of the Act lists those offences which can be

adjudicated by the gram nyayalayas.

Within its criminal jurisdiction, theft;

concealment, disposal and receiving of

stolen property; and insult with intent to

provoke a breach of the peace are some of

the offences that can be decided by these

courts. Vitally, offences which are not

punishable with death, imprisonment for

life or imprisonment for a term exceeding

two years are also included within the

scope of its jurisdiction.

Part II of this Schedule lists some stat-

utes and offences committed under these

Acts within the ambit of the criminal juris-

diction of the gram nyayalayas. Some of

these include the Payment of Wages Act,

1936, the Minimum Wages Act, 1948, the

Protection of Civil Rights Act, 1955, the

Bonded Labour System (Abolition) Act,

1976, the Equal Remuneration Act, 1976and the Protection of Women from

Domestic Violence Act, 2005. Schedule II

includes most property disputes and

claims arising from Payment of Wages

Act, 1936 and Minimum Wages Act, 1948

within the scope of civil jurisdiction of the

Nyayalaya. Evidently, most of these legis-

lations directly affect the impoverished.

These are social welfare legislations

which require careful and sophisticatedadjudication. That this Act does not incor-

porate proper procedures is even more

troubling, given the nature of disputes

that will come up for consideration of

these courts.

(ii) Circumscribed Right of Appeal: The

most problematic part of the Act PartVII

deals with appeals. Section 33 provides

for appeals in criminal cases. Subsection

(1) provides that notwithstanding any-

thing contained in the CrPC or any other

law, no appeal shall lie from any judg-

ment, sentence or order of a gram nyaya-

laya except as provided hereunder.

The Act already prevents appeals in

cases where the accused person has

pleaded guilty or where the gram nyaya-

laya has passed a sentence only of fine not

exceeding Rs 1,000. This leads up to the

legally unjustifiable, Section 34 (2) that

provides that no appeal shall lie from any

judgment or order passed by the gramnyayalaya (a) with the consent of the par-

ties; (b) where the amount or value of the

subject matter of a suit, claim or dispute

does not exceed Rs 1,000; (c) except on a

question of law, where the amount or value

of the subject matter of such suit, claim or

dispute does not exceed Rs 5,000.

It is crucial to note that Sections 33 and

34 provide for appeals in certain cases to

the court of session and the district court,

respectively. Hence, a party can appeal

the nyayadhikaris decision to a sessions

court for criminal matters which must be

decided in that forum by that judge within

six months. For civil matters the appeal

should be directed to district court which

must decide it within six months.

However, the Act prevents any further

appeal after the decision of the court of

session or the distr ict court. Section 33 (7)

provides that the decision of the court of

session shall be final and no appeal or

revision shall lie from the decision of thecourt of session. Similarly, Section 34 (6)

provides that the decision of the district


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COMMENTARY

october 23, 2010 vol xlv no 43 EPW Economic & Political Weekly18

court shall be final and no appeal or revi-

sion shall lie from such decision. The

revised version of the bill that was finally

enacted also contains a proviso which

allows for availing of judicial remedies

available under Articles 32 and 226 of the

Constitution. Therefore, for almost all

matters that will be decided by the gramnyayalayas, there can be only one addi-

tional appeal to subordinate courts.

Within the part of the Act, there are

also concerns regarding the time limit im-

posed on filing an appeal against the deci-

sion of the gram nyayalaya. As per Section

33 (4), every appeal shall be preferred

within a period of 30 days from the date of

judgment, sentence or order of a gram

nyayalaya in a criminal case. This is simi-

lar to Section 34 (3) which lays down the

same restrictions for civil cases. The Par-

liamentary Committee which commented

on the 2007 Gram Nyayalaya bill had criti-

cised this provision and stated that there

were no valid reasons as to why the period

of limitation provided in the Criminal and

Civil Procedure Codes should not be made

applicable to gram nyayalayas (Department

Related Parliamentary Standing Commit-

tee: 26). In spite of these recommenda-

tions, the Act continues to set a bar on the

time period which is less than the timeprescribed in the procedural laws. This is

another example of the Act compromising

on proper procedure and is bound to cre-

ate difficulties for parties involved in liti-

gation at the level of gram nyayalayas.

(iii) Summary Procedure and Plea

Bargaining: Gram nyayalayas shall fol-

low summary trial procedure in criminal

cases. This runs contra to the CrPC that

normally governs all criminal trials in the

formal court system. Section 20 provides

that any person accused of an offence may

file an application for plea-bargaining in

the gram nyayalaya in which such offence

is pending trial and the gram nyayalaya

shall dispose of the case in accordance

with the provisions of the CrPC. This pro-

vision for plea-bargaining must be read in

the context of Section 33(2) (a) which pro-

vides that no appeal shall lie where an ac-

cused person has pleaded guilty and has

been convicted on such plea.Further, plea-bargaining has been

introduced in the CrPC, which governs the

adjudication of criminal disputes in the

court system. The Law Commission of India

in its 142nd report had recommended a

competent authority, a metropolitan

judge or magistrate of the first class or two

retired high court judges (depending on

the gravity of the offence) would be ap-

pointed as plea judges. The accused wouldfile an application for a plea bargain to the

plea judge. This would ensure that the

accused could still get a fair trial from the

regular judge should the plea bargain not

go through (Tewari and Agarwal 2006).

The 154th Law Commission felt that in

the Indian context bargaining with a

prosecutor would be hazardous and a

competent authority would safeguard the

principle of a fair trial. Unfortunately, the

Gram Nyayalayas Act does not provide

for such a competent authority. The appli-

cation for plea-bargaining is to be filed

with the court itself. Therefore, if such

an application is rejected, this would in

turn have an undue bearing when the

trial is conducted.

(iv) Interests of Justice: While the

scheme of the Act which details the special

procedure in civil disputes is not entirely

undesirable, it is worthwhile to appreciate

that Section 24 (7) provides that the pro-ceedings shall, as far as practicable, be

consistent with the interests of justice.

This provision employs non-binding

language and is conditional while dealing

with an issue of prime importance. Any

proceeding in a court of law must be con-

sistent with the interests of justice in all

circumstances; however, this provision

allows for non-compliance when it is

not practicable.

(v) Civil Courtsans Civil Procedure: In

terms of civil suits, the gram nyayalaya

has the power of a civil court, and the

judgment passed by it shall be executed as

if it were a decree of a civil court. How-

ever, the forum shall not be bound by the

procedure in respect of execution of a de-

cree as provided in the CPC and it shall be

guided by the principles of natural justice.

Section 30 of the Act dealing with the

application of the Indian Evidence Act,

1872, provides that a gram nyayalaya mayreceive as evidence any report, statement,

document, information or matter that

may, in its opinion, assist it to deal effectu-

ally with a dispute, whether or not the

same would be otherwise relevant or

admissible under the said Act.

The Act envisages day to day hearing

with summary procedure and pronounce-

ment of judgment within 15 weeks from

the date of the last hearing. The proceedingsshall be in one of the official languages of

the state other than English, as far as prac-

ticable. The parties may argue their own case

but they also reserve the right to engage a

lawyer to represent them. The Act also

places a duty on the gram nyayalayas to

provide for conciliation and settlement of

civil disputes for which they shall follow

the procedure prescribed by the high court.

(vi) Police Assistance: The Act also seeks

to provide for assistance of police to the

gram nyayalayas, wherein every police

officer functioning within the local limits

of jurisdiction of such a court shall be

bound to assist in the exercise of its lawful

authority. Further, it binds the police

officer or any other government servant to

provide assistance when so directed by

these courts. Galanter and Krishnan docu-

ment the manner in which police assist-

ance has affected the functioning of the

Electricity Lok Adalats (Galanter andKrishnan 2004: 812). The police, they

note, in fact appear and advocate for the

electricity companies. They point out how

the police representatives act as the lead

advocates not only in criminal matters but

also in several other billing disputes

(ibid). The authors refer to Julia Eckerts

description of the Shiv Sena courts in Ma-

harashtra, where police representatives

act as interpreters and arbitrators of the

law (ibid). Given the similarity in the set-

ting of lok adalats and gram nyayalayas,

there are bound to be similar difficulties

with the explicit inclusion of a provision

warranting police assistance in the Act. In

a system which compromises on issues of

due process and prevents the usual

number of appeals, it is dangerous to al-

low the police to offer assistance which

may lead to coercion of the litigants.

Conclusions

The government should appreciate thatthe aim of adjudication is not merely

peace, or the maximisation of the ends of


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Economic & Political Weekly EPW october 23, 2010 vol xlv no 43 19

private parties (Fiss 1984: 1073). It is to

give force to constitutional values and

ensure that such values infuse the content

of the true aim of adjudication justice.

A statute that is created only for people re-

siding in rural areas, with limited proce-

dural guarantees, to adjudicate allegedly

small claims including those that impli-cate a litany of social welfare legislation

concerning Minimum Wages, Civil Rights,

Abolishing Bonded Labour, Equal Pay and

Protection from Domestic Violence com-

promises the promises of our Constitu-

tion. It makes a mockery of that which is

most sacred to all law that power, re-

sources and the quantum of private gain

will not determine the aims or means of

the process that is adjudication. The GramNyayalayas Act violates this essential

foundation of adjudication.

References

Department Related Parliamentary Standing Com-mittee: Committee on Personnel, Public Griev-ances, Law and Justice, 22nd Report on the GramNyayalayas Bill, 2007.

Fiss, Owen M (1984): Against Settlement, Yale LawJournal 93:1073.

Galanter, Marc and Jayanth K Krishnan (2004):Bread for the Poor: Access to Justice and the

Rights of the Needy in India,Hastings Law Journal55:789.

Tewari, Sulabh and Tanya Agarwal (2006): WannaMake a Deal? The Introduction of Plea Bargainingin India, Supreme Court Cases (Cri) (Jour) 2:12.

Implementation of theMaharashtra Universities Act

B Venkatesh Kumar

An evaluation of the

implementation of the

Maharashtra Universities Act,

1994 shows that individuals who

excel in electoral arithmetic,

rather than academics or academic

administrators, occupy important

posts in universities. The state

government has appointed threecommittees to suggest reforms in

higher education. Not only is

there a need for a new legislative

enactment, these committees also

face the challenging task of

recommending changes that

will lead to academic freedom

and accountability in the

states universities.

Recently, the Government of Maha-

rashtra announced the formation

of three committees to suggest

measures for reform of higher education.

While two of these have been given the

task of looking at the existing Maharashtra

Universities (MU) Act, 1994, recommending

new legislative enactments, and bifurcation

of universities, the third committee has

been given a much broader mandate. It has

been asked to suggest ways and means toimprove the standard and quality of higher

education. There are other issues which they

are mandated to look at within a holistic

framework (http://techedu.maharashtra.

gov.in/english/dcmNew/index_UC.php?

departmentCode=2402) of reforms.

This raises several concerns. First, with

three committees there is the risk of

contradictory recommendations. Second,

there is no representation from the social

sciences and the legal field, both essential

for (re)drafting of the Act. Third, the

committees recommendations will be

examined by another committee chaired

by the education minister. The political

control over higher education in Mahar-

ashtra is so deeply embedded that reforms

leading to academic freedom and excel-

lence look like a distant possibility.

Interesting and Intriguing

The state governments decision to over-

haul the higher education system is bothinteresting and intriguing. It is interesting

because Maharashtra with its long tradition

of political elites setting up educational

institutions for public good, has decided

to get its house in order by looking at re-

forming the public universities. It is quite

intriguing because the same political class

that governs a large number of educational

institutions in the state (in fact, they

believe that healthy public universities

are a threat to their institutions) are now

looking at reforming these universities!

The current initiative in Maharashtra is

in continuation of the landmark reform

process that was initiated by the state gov-

ernment at the instance of the former

Governor and Chancellor of Universities,

S C Jamir. These reforms, initiated in

2009, were aimed at improving the gov-

ernance of universities in the state, some

of which achieved the desired outcomes(Kumar 2009).

This article examines the current state

of higher education in Maharashtra and

the implementation of the MU Act of 1994.

It also looks at issues of external and

internal constraints which have led to the

deinstitutionalisation of many universities.

Such deinstitutionalisation in turn has

resulted in a severe crisis of governance.

There is need for a new legislative enact-

ment and a diversified institutional design

for universities a challenge these three

committees will have to address.

Current Status

An independent study for the Planning

Commission (Pethe et al 2009) for the

midterm review of the Eleventh Plan,

which draws heavily from the Maharash-

tra governments statistics, has interest-

ing pointers. While the Gross Enrolment

Ratio (GER) for India is about 13.1%,

Maharashtras GER is 13% in higher andtechnical education. On the other hand,

while the GERfor vocational education is

B Venkatesh Kumar ([email protected]) is

with the Tata Institute of Social Sciences,

Mumbai and currently a Hubert Humphrey

Fellow at Penn State University, United States.

guruswamy menaka, aditya singh_accessing injustice_gram nyayalayas act 2008

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