Parliament enacted the Gram Nyayalaya Act in 2008 to unleash the most dramatic expansion of the Indian legal system since Independence… But the gram nyayalayas may become a part of the problem of the Indian legal system rather than any part of a solution…
The Law Ministry unveiled an ambitious National Mission for Delivery of Justice and Legal Reform in November 2009 which aims to reduce the pendency of cases in the Indian legal system to three years by 2012. This aggressive statement of intent is to be realised by several initiatives: expansion of the formal court system and the establishment of fast track courts; adoption of a national litigation policy by the Government; expansion of alternative dispute resolution including arbitration and mediation, and finally, by the rapid rollout of a new subordinate court called the gram nyayalayas. While the policy emphasis on legal system reform is critical to the preservation of the rule of law in India, the proposed Gram Nyayalaya system rests on fundamental misconceptions of the nature of dispute processing in legal systems.
Parliament enacted the Gram Nyayalaya Act in 2008 to unleash the most dramatic expansion of the Indian legal system since Independence. The Constitution of India 1950 establishes the Supreme Court and the high courts. The Codes of Criminal Procedure and Civil Procedure set up the civil and criminal courts. Various other legislations establish independent courts or tribunals for specific types of disputes: family, consumer or tax disputes.
The Government proposes to partner with the High Courts and State Governments to establish a new tier of the general court system by seeding in excess of 5,000 gram nyayalayas across India at the panchayat level. The gram nyayalayas are to be staffed by a person with the qualifications of a first class judicial magistrate who will function as a court with civil and criminal jurisdiction. The nyayalayas are not strictly bound by the procedural rules that apply to other courts and shall, “as far as possible”, pursue the interests of justice. Further, there is a limited scope of appeal from the decisions of this court. The gram nyayalaya uneasily straddles two approaches to legal system reform: expansion of the formal legal system and diversion from the mainstream legal system. Both these approaches rest on an understanding of a legal system which are conceptually inadequate and empirically suspect.
The first premise is that the legal system is a fixed universe of legal disputes that need to be processed through the dispute resolution system in a more efficient manner. This static picture of the legal system invites reforms that either expand the existing avenues for dispute resolution or create new fora where dispute resolution takes place in a more efficient manner. This premise is conceptually inadequate as there is no static universe of legal disputes. The nature and number of legal disputes varies depending on the nature of substantive law, the legal interests and real world interests of parties and the demand and supply side factors that influence the institutional choice for dispute processing.
Let us take two simple examples to illustrate. Prior to the enactment of the Right to Information Act, 2005 there were two ways in which one could access Government information: through a Parliamentary question or through public law litigation in the courts. As both legal processes were cumbersome there were few legal disputes on the access to information. With the creation of new legal entitlements by the Act and the Commissions to resolve disputes there is now a cottage industry of dispute resolution built around this new Act. Secondly, the creation of the Central and State Administrative Tribunals in the 1980s was meant to divert service matters from clogging the docket of the High Courts.
The tribunals did serve the purpose to the extent that there was an explosion of service law disputes that flooded the new tribunals. By retaining the judicial review powers of the High Court the service law matters continue to crowd this court as well. In this second example, no new substantive rights were created. However, the creation of the new forum allowed parties who may not otherwise have accessed the High Court approach the tribunal. These examples suggest that the gram nyayalayas are not only going to divert the existing disputes away from the civil and criminal court system and thereby speed up dispute resolution in the legal system. Instead they are likely to spawn a new arena where disputes which were hitherto resolved through other dispute processing mechanisms will now enter the legal system.
The second premise on which the gram nyayalaya initiative rests is that diversion of disputes away from the formal, expensive and slow existing legal system towards a relatively informal, localized model of dispute resolution has justice enhancing consequences. The Lok Adalat system, alternative dispute resolution mechanisms, family and consumer courts are other attempts at diversion as a strategy for legal system reform. There has been no comprehensive empirical assessment of the success of diversion strategies towards reducing delay in the formal legal system. Further, there has been no rigorous assessment of the justice enhancing properties of these diversionary strategies. The primary feature of diversion that appeals to Indian legal reformers is that it reduces delay and thus it is assumed to be justice enhancing.
This is an impoverished view of procedural justice which at least since the time of Aristotle has adopted a triadic analytic framework where rectitude of decision making, cost and time are the three virtues of any dispute resolution process. As these three virtues often pull in different directions, any dispute resolution process has to satisfy them to the extent possible. The gram nyayalayas run the grave risk of sacrificing rectitude at the altar of the costs and time. The failure to integrate a rigorous understanding of dispute resolution in a legal system or the normative pillars that should guide institutional design in dispute resolution may result in the gram nyayalayas becoming a part of the problem of the Indian legal system rather than any part of a solution.
(Dr Sudhir Krishnaswamy is Professor of Law, West Bengal National University of Juridical Sciences)
– The Sunday Guadian