Prof Hrudaya Ballav Das
Article 40 of the Constitution mandates the state to organise village panchayats and invest them with necessary authority for self governance. The idea of local government as state subject has undergone a transformation after the 73rd Constitutional Amendment Act. The Union government has drafted the outlines of the scheme in Articles 243, 243 ZG to be implemented by the states for panchayat raj system. Therefore, there is an obligation on the state to organise “gram nyayalayas” in village areas at the grassroot level.
Constitutional provisions laid down in Article 14 speaks of equality before law and equal protection in law and Article-39 (A) mandate the state to give free legal aid at the state’s cost to the poor, needy and downtrodden to promote justice on the basis of equal opportunity. Therefore, the Grama Nyayalaya Act 2008, a central legislation, came into force and Orissa has framed the Grama Nyayalaya (court) Rules 2010 along with Orissa Grama Nyayalaya Staff Rules 2010.
Panchayat Raj, including village courts is of ancient origin. It is remarkable that the panchayat resolves petty disputes both civil and criminal nature and such institutions are known as “gramina nyayalaya”. The method adopted for settlement of such cases are by way of conciliation, compromise, mediation based on the golden principle of give and take, in a spirit of appeasement and with a sense of rapprochement.
The object of grama nyayalaya is to give justice to poor litigants at the grassroot level without much procedural wrangling and without going into the technicalities of the legal provisions. The procedure adopted for hearing of cases is informal and the proceedings are transacted in a congenial atmosphere. The cases are resolved across the table by way of persuasion and not by pressure. There is no cost of litigation and no lawyer is necessary to argue the case of the parties.
In terms of the Act, “Nyayadhikari” means the presiding officer of a gram nyayalaya. For the purpose of exercising the jurisdiction and powers conferred on a gram nyayalaya by this Act, the state government after consultation with the High Court may by notification establish one or more gram nyayalayas for every panchayat at intermediate level or a group of contiguous panchayats at intermediate level in a district.
A person shall not be qualified to be appointed as a nyayadhikari unless he is eligible to be appointed as judicial magistrate first class. While appointing a nyayadhikari representation shall be given to members of Scheduled Castes, the Scheduled Tribes and women. The nyayadhikari shall periodically visit the villages falling under his jurisdiction and conduct trial or proceedings at any place which he considers is in close proximity to the place where the parties ordinarily reside or where the whole or part of the cause of action had arisen.
Where the gram nyayalaya decides to hold mobile court outside its headquarters, it shall give wide publicity of the date and place where it proposes to hold mobile court. The gram nyayalaya shall be deemed to be a court of a judicial magistrate of the first class and the provisions of criminal procedure code shall apply for deciding criminal cases. The accused can also avail the benefit of plea-bargaining for quick disposal of the case. If the accused pleads guilty and the punishment ends in fine within `1,000, there is no scope for appeal in the sessions court. The gram nyayalaya shall try offences in a summary way. Only the substance of the memorandum of evidence is to be recorded by the nyayadhikari.
In a criminal proceeding, the complainant may engage an advocate of his choice at his expense with the leave of the gram nyayalaya. The State Legal Services Authority shall prepare a panel of advocates and assign at least two of them to be attached to each gram nyayalaya so that free legal aid may be provided to the accused unable to engage an advocate. Nayadhikari is empowered for resolution of disputes by means alternative methods like conciliation, mediation and arbitration and through the instrumentality of Lok Adalat.
The gram nyayalaya is also deemed as a civil court. So far as the civil cases are concerned in relation to the defendants, the jurisdiction is decided where the defendant ordinarily resides or carries on business at the time of institution of the suit, irrespective of the place where the cause of action arose. More precisely, in criminal cases the place where the offence is committed and in civil suits, the residence of the defendants and not the place where the cause of action arises, determine the territorial jurisdiction of the gram nyayalaya. The civil jurisdiction of the grama nyayalaya is confined to suits involving simple determination of facts. They are of common occurrence in rural areas and do not normally give rise to complicated questions of law.
The criminal jurisdiction of gram nyayalayas is not substantive and wide. It is confined to simple offences, where punishment is up to two years only not involving complicated questions of law, lengthy procedure or tiresome legal technicalities. Normally the gram nyayalaya tries to solve the dispute by consensus. If consensus is not arrived, the decision will be by majority. The significance of gram nyayalays is that informal proceedings in local language would inspire confidence among villagers to assert their legal rights. It is gratifying to note that the Act has expressed in unequivocal terms that every police officer, revenue officer or government servant in the jurisdictions of gram nyayalayas shall be bound to provide such assistance as may be required by the nyayalaya in the discharge of its function. It ensures participatory, quick and inexpensive delivery of justice at the doorsteps of villagers. The power of supervision and control over the working of grama nyayalaya is vested with district and sessions judge and appeal lies with the district court.
Orissa has already started 16 gram nyayalayas as a part of participatory justice or distributive justice. This would inspire confidence in public mind about the efficacy of justice delivery system after the panchayat raj system has been revitalised for self governance in a much wider dimension. Very recently in the conference of Chief Ministers and Chief Justices of states held at New Delhi graced by the Prime Minister and Chief Justice of India, Orissa pleaded for the setting up of 15 more gram nyayalayas at the block level. Instead of establishing 15 more gram nyayalayas, the government would do well to establish a full-fledged court of judicial magistrate first class with civil powers in every block of the state in phased programmes as part of ruralisation of administration of justice.
The author is a former
special judge of the Central Bureau of Investigation, Orissa
