Gram Nyayalya Act 2008 " A step towards social Justice"

GRAM NYAYALYA ACT 2008 “A STEP TOWARDS SOCIAL JUSTICE”


Manuscript submitted for the “ALL INDIA LAW CONGRESS 2010”
On
(March 27-28, 2010)

Organized by:
Department of Law
Punjab University Chandigarh-160014.



Kundan Kumar Ojha STUDENT OF LAW, B.A.LL.B 2nd year
KIIT LAW SCHOOL, KIIT UNIVERSITY BHUBANESWAR-751024, ORISSA
E-MAIL:Kundan.kls@gmail.com MOB.: +919040272274.


 
Table of Contents
OBJECTIVE OF THE STUDY 3
METHODOLOGY 3
GRAM NYAYALYA 3
WHAT IS SOCIAL JUSTICE? 4
BACKGROUND OF THE ACT 4
GRAM NAYAYALYA ACT CONSTITUTIONAL POINT OF VIEW 5
FUNCTIONS OR JURISDICTIONS OF GRAM NYAYALAYA ACT 6
BENEFITS OF THIS ACT 8
A STEP TOWARDS SPEEDY JUSTICE 8
REDUCING BURDEN ON HIGHER COURTS 9
JUSTICE FOR ECONOMIC AND SOCIALLY BACKWARD CLASS 10
CONCLUSION 11


 
OBJECTIVE OF THE STUDY
Since Gram Nyayalya Act is very recent act and its aims to provide social justice at grass root level to poor people and since 75% of Indian population is rural population so the access of justice is not available to everybody, it is very hard to get justice for villagers and in such a situation central government passed this act. My first aim is to find out the constructional validity of this act and after that I will try to examine the provision of this act and by examining the provisions I will try to note that what the benefit is it is going to provide in area of justice. Since no any provision is all in all so there is probability of some difficulties in implementing this act, I will try to examine those difficulties and post implementation difficulties of this act in my research.
METHODOLOGY
In my research I followed doctrinal method of research , this is the method of research where all the data are to be taken for research are only secondary data, in my research also I basically collected secondary data. For those data I accessed KIIT LAW SCHOOL library and some of the data I collected from internet also.
GRAM NYAYALYA
The word Gram Nyayalya is combination of two HINDI words “Gram” and “Nyayalya.” Where Gram means village and Nyayalya means court of justice. Thus Gram Nyayalya literally means court of justice available in villages, where we can define village as a unit of administration for which no municipality is set up section 4 of the Gram Nyayalya Act talks about the headquarter of Gram Nyayalaya, that is The headquarters of every Gram Nyayalaya shall be located at the headquarters of the intermediate PANCHAYAT in which the Gram Nyayalaya is established or such other place as may be notified by the State Government. GRAM PANCHAYAT has been defined in article 243(D) of Indian constitution as an institution by whatever name called of self government constituted under article 243(B) for the rural areas. Whereas court of justice has been defined in section 21 of Indian penal code where the word court of justice denote a judge who is empowered by law to act judicially alone or a body of judges which is empowered by law to act judicially as a body when such judge or body of judge is acting judicially.
WHAT IS SOCIAL JUSTICE?
To know the meaning of justice first of all we will have to find that the injustice is? Aristotle said injustice arises when injustice arises when equals are being treated unequally and also when unequal are being treated equally. Jawn Rawls also talked about the justice, his idea of justice was mainly distributive justice, he talks justice as fairness , he says the distribution of goods in society should be just .the sources should not be confined within some selected personality it should be distribute among such a person’s those who does not have sources.
BACKGROUND OF THE ACT
Indira Gandhi had started Garibi Hatao Aandolan and a 20 point program for the purpose of introducing Lok Adalats, but the main problem which the committee faced was how to solve the legal problems of HARIJANS, women, and poor and needy, in 1978 the concept of Lok Adalats and Legal Aid was introduced . Even Dr. Madhav Menon mentions in his book “Processual Justice of the People” that the hindrance to providing justice to all the people in India because of the prevalence of Caste System. After that Indian Law Commission in 1980 under the chairmanship of Justice Desai published two reports on Urban Litigation and Rural litigation respectively which dealt exclusively with Gram Nyayalaya and their types. Latter on Law commission of India passed his 114th law report on august 12, 1986, on the topic of alternative forum for resolution of dispute at grass level. The journey for this act was not so easy, even its voice again rose by a retired IAS officer in august 1997 by LOKSATTA MOVEMENT. The key goals of this movement included "establishment of local courts for speedy, accessible and affordable justice. Finally on 7th December 2005 there was some communication between National Advisory Council and government of India on Gram Nyayalya bills, in this communication The National Advisory Council carefully examined the issue of establishing local courts all over the country in order to ensure speedy, accessible and efficient justice through citizen-friendly, simple procedures. Accordingly, a recommendation has been sent to the Government along with a draft bill The Government approved that proposal in principle and made a public commitment to this effect. Accordingly, the Law Ministry prepared a draft Gram NYAYALAYAS Bill, 2005, but there was some amendment proposed in that bill by same council. The union government given the approval for pursuance of Gram NYAYALYA bill 2007 in parliament and to move official amendment to RAJYA SABHA on 13th December 2007 and RAJYA SABHA approved this bill in 2008. And this act came into existence on 7th January 2009. The extension of this act to the whole of India except the State of Jammu and Kashmir, the State of Nagaland, the State of Arunachal Pradesh, the State of Sikkim and to the tribal areas. Explanation. In this sub-section, the expression "tribal areas" means the areas specified in Parts I, II, IIA and III of the Table below paragraph 20 of the Sixth Schedule to the Constitution within the State of Assam, the State of Meghalaya, the State of Tripura and the State of Mizoram, respectively.
GRAM NAYAYALYA ACT CONSTITUTIONAL POINT OF VIEW
In each and every constitution around all over the different countries in the world, it has its goal, without any goal or any aim any constitution is not full. Indian constitution has also some of its goals which has mentioned in its preamble and Directive Principle of State policy. The preamble of our constitution secure justice liberty equality and fraternity of all citizens. In this preamble part justice talks about the “justice” that is social, economical and political. The Gram NYAYALYA act is passed by the parliament for the purpose of “provide for the establishment of Gram NYAYALAYAS at the grass roots level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected therewith or incidental thereto”. Since The Gram NYAYALAYA would be a body for administration of justice, and legislation for the same would squarely fall under Entry 11-A of the Concurrent List. Entry 11A says administration of justice constitution and organization of all courts except the Supreme Court and high courts. So this is the act valid under this entry and on this act both the union and the state will have power to make law relating to it. Moreover Directive principles are designed to usher in a social and economic democracy in the country. The preamble of the constitution read with directive principles in arts 38, 42, 43, 46, and 48A promote the concept of social economic and political equality. Social justice is to attain a substantial degree of social economic and political equality. Social justice is device to mitigate the suffering of the poor weak, tribes and the deprived sections of the society and to elevate them so that they can live with dignity. The supreme court of India in case of S.E.S.C. Ltd. v. S.C.Bose it was held that right to social and economic justice has now became a fundamental right. Article 21 also talks about protection of life and liberty. This article says that no person shall be deprived of his life or personal liberty except procedure established by law, if somebody deprives of his right conferred in article 21without procedure established by law it will be unjust. The supreme court has taken recourse to art 39A to interpret art 21 to include therein the right to livelihood the supreme court has observed in Olga Tellis v. Bombay Municipal Corporation laid down “if there is an obligation upon the state to secure to the citizens an adequate means of livelihood and the right to world it would be sheer pedantry to exclude the right to life. Here this act also sought to give justice at grass root level for the purposes of providing access to justice to the citizens at their doorsteps and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities. So the importance of article 39A is so long as it is part of right to life.
FUNCTIONS OR JURISDICTIONS OF GRAM NYAYALAYA ACT
Chapter 3 section 11 to 17 of Gram Nyayalya act talks about its jurisdiction, powers and authority of Gram Nyayalaya. It talks both civil and criminal cases can be decided by the Gram Nyayalaya. First schedule of the Bill contains the list of offences. Section 11 of this act says Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or the Code of Civil Procedure, 1908 or any other law for the time being in force, the Gram Nyayalaya shall exercise both civil and criminal jurisdiction in the manner and to the extent provided under this Act moreover it has its criminal jurisdiction and civil jurisdiction also conferred in its section 12, 13 accordingly.
Criminal jurisdiction- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force, the Gram Nyayalaya may take cognizance of an offence on a complaint or on a police report and shall- (a) try all offences specified in Part I of the First Schedule; and (b) try all offences and grant relief, if any, specified under the enactments included in Part II of that Schedule. (2) Without prejudice to the provisions of sub-section (1), the Gram Nyayalaya shall also try all such offences or grant such relief under the State Acts which may be notified by the State Government under sub-section (3) of section 14. Moreover for the purpose of fast settlement of dispute section 19 and section 20 of this act have been provided whereas in trial of criminal case it follow summary trial procedure and plea bargaining process respectively.
Civil jurisdiction- (1) Notwithstanding anything contained in the Code of Civil Procedure, 1908 or any other law for the time being in force, and subject to sub-section (2), the Gram Nyayalaya shall have jurisdiction to- (a) try all suits or proceedings of a civil nature falling under the classes of disputes specified in Part I of the Second Schedule; (b) try all classes of claims and disputes which may be notified by the Central Government under sub-section (1) of section 14 and by the State Government under sub-section (3) of the said section. (2) The pecuniary limits of the Gram Nyayalaya shall be such as may be specified by the High Court, in consultation with the State Government, by notification, from time to time. Under civil dispute this court will decide cases relating to Boundary disputes and encroachment, Right to purchase, Use of common pasture, Entries in revenue records, Regulation and timing of taking water from irrigation channel, Disputes as to assessment. As same as in trial of criminal cases in civil matter also under section 24 of this act there is provision for special procedure in civil dispute.
Provisions of the Evidence act will not apply to the Gram Nyayalayas. Evidence as such will be presented before the Judge but then not under the provisions of the aforementioned Act. Principles of natural justice will apply in deciding a case of Gram Nyayalaya . There are two types of limitation is provided in section 15 of this act those limitation are
l) The provisions of the Limitation Act, 1963 shall be applicable to the suits triable by the Gram Nyayalaya.
2) The provisions of Chapter XXXVI of the Code of Criminal Procedure, 1973 shall be applicable in respect of the offences tribal by the Gram Nyayalaya.
BENEFITS OF THIS ACT
A STEP TOWARDS SPEEDY JUSTICE
As we all know that “justice delayed is justice” it means if there is delay in delivery in justice there is no value of that justice. There are some section inserted in this acts which could take step towards speedy justice after its implementation. Section 22(1) of this talks about pronouncement of judgment which says The judgment in every trial shall be pronounced by the Nyayadhikari in open court immediately after the termination of the trial or at any subsequent time, not exceeding fifteen days, of which notice shall be given to the parties. The two main sections of this act which could help in speedy justice is section 19 and section 20 respectively. Whereas section 19 says Gram Nyayalaya to follow summary trial procedure. - (1) Notwithstanding anything contained in sub-section (1) of section 260 or sub-section (2) of section 262 of the Code of Criminal Procedure, 1973, the Gram Nyayalaya shall try the offences in a summary way in accordance with the procedure specified in Chapter XXI of the said Code and the provisions of sub-section (1) of section 262 and sections 263 to 265 of the said Code, shall, so far as may be, apply to such trial. (2) When, in the course of a summary trial, it appears to the Nyayadhikari that the nature of the case is such that it is undesirable to try it summarily, the Nyayadhikari shall recall any witness who may have been examined and proceed to re-hear the case in the manner provided under the Code of Criminal Procedure, 1973. And 20 talks about plea bargaining process. Plea bargaining before Gram Nyayalaya. - A person accused of an offence may file an application for plea bargaining in Gram Nyayalaya in which such offence is pending trial and the Gram Nyayalaya shall dispose of the case in accordance with the provisions of Chapter XXIA of the Code of Criminal Procedure, 1973.

REDUCING BURDEN ON HIGHER COURTS
As we all know India is very large country every day the process of dispute is going and in same speed the cases are being filled in the courts. The rate of filling the case is so high, as a result we can see the rate of filling the case in last few years was found more than 28% . According to statement made by law minister of India in Indian parliament on 17th December 2009 total of 31,139,022 cases were pending in in the courts across the country. Section 16 of Gram Nyayalaya act 2008 sets out a provision relating to transferring the cases pending in higher courts. This section says (1) The District Court or the Court of Session, as the case may be, with effect from such date as may be notified by the High Court, may transfer all the civil or criminal cases, pending before the courts subordinate to it, to the Gram Nyayalaya competent to try or dispose of such cases. (2) The Gram Nyayalaya may, in its discretion, either retry the cases or proceed from the stage at which it was transferred to it. According to the agenda note to discuss resolution on pending cases at the end of 2008 the arrears of civil and criminal cases pending disposal in the various high courts were 38, 74,090. Out of which 31, 03,352 are civil and 7, 70,738 criminal cases. In subordinate courts the total pendency of cases at the end of 2008 was 2,64,09011 out of which ,88,69,163 are criminal and 75,39,848 civil cases. As soon as this act come into force the pending cases in subordinate courts will be transferred to Gram Nyayalyas under the provision of section 16 of this act. Thus the way it will help to reduce burden on higher courts. On sept-27th 2009 Union Law and Justice Minister M.Veerappa Moily talked about establishment of Gram Nyayalyas he hoped that 5,000 Gram Nyayalayas will be set up across the country in three years. They will try to clear lakhs of cases pending in various courts. "Two hundred Gram Nyayalayas was supposed to set up from October 2 and they can help in clearing half of the pending cases in six months. On November 19,2009 law minister again declared to set up 193 village courts. If this act comes into the force then 2, 64, 09011 pending cases in subordinate courts across the country will be transferred to Gram Nyayalya under the provision conferred in section 16 of the said act.

JUSTICE FOR ECONOMIC AND SOCIALLY BACKWARD CLASS
The issue of 'Justice' to Aam Aadmi was never raised as an election issue. As we all know that Indian constitution in its preamble only enshrines Justice that is Social, Economic, and Political. Article 39A of constitution of India inserted in constitution by 42nd amendment act 1976. This article talks about the aim of the state that state shall secure that the operation of the legal 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 away to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The provisions of this act also talks about free justice of grass route level. Many people do not get justice because of corruption and not availability of money because now days court proceedings are also not cheap. So section 9 of this act talks about the mobile court , in this type of courts there is no provision of lawyers and court fee, here according to clause 1 of this section 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: Provided that where the Gram Nyayalaya decides to hold mobile court outside its headquarters, it shall give wide publicity as to the date and place where it proposes to hold mobile court. For the purpose of transparency there is provision under section 8 which says Nyayadhikari not to preside over proceedings in which he is interested. - The Nyayadhikari shall not preside over the proceedings of a Gram Nyayalaya in which he has any interest or is otherwise involved in the subject matter of the dispute or is related to any party to such proceedings and in such a case, the Nyayadhikari shall refer the matter to the District Court or the Court of Session, as the case may be, for transferring it to any other Nyayadhikari. For the purpose of fair justice the provision has been introduced in the bill of Gram Nyayalya. Section 8 says (1) A Nyayadhikari may be removed from his office on the ground of incompetence, gross negligence, corruption, malfeasance or conduct unbecoming of a Nyayadhikari. (2) Any person who has been removed from the office of Nyayadhikari shall be ineligible for appointment under the Government. Moreover for the betterment of this act there is there is section provided that is section 35. Assistance of police to Gram Nyayalayas. - (1) Every police officer functioning within the local limits of jurisdiction of a Gram Nyayalaya shall be bound to assist the Gram Nyayalaya in the exercise of its lawful authority. (2) Whenever the Gram Nyayalaya, in the discharge of its functions, directs a revenue officer or police officer or Government servant to provide assistance to the Gram Nyayalaya, he shall be bound to provide such assistance.

CONCLUSION
Lastly I would like to conclude by saying that Gram Nyayalya act is new revolution in country like India where crores of people waiting for their chance to justice. Once it was recommended the establishing Gram Nyayalayas as the lowest tier of the judiciary for rural areas of rural Gujrat, around 225 villages. But for that estimated total expenditure of Rs 300 crore for developing the infrastructure of gram nyayalayas across the state, said by M H Shah, Secretary, Legal Department, and Government of Gujarat. On 19 November 2009 In a written statement to the Lok Sabha, Union Law and Justice Minister, M. Veerappa Moily said establishment of Gram Nyayalayas subject to a ceiling of Rs.18.00 lakhs per Gram Nyayalaya. Although it will be a huge amount of money to establish Gram Nyayalya but it will change the face of India.