Nyaya Panchayats

Why they were created

The nationalist argument. Gandhi's village republic, and the belief that a court that sat in the village, spoke its language and cost nothing was the only court most Indians would ever actually use. Article 40 is that argument in the Constitution.

The practical argument. Distance and cost. A district court in the 1950s was a day's journey and a month's wages, and a petty dispute worth fifty rupees was worth nobody's while to litigate. The dispute was therefore either abandoned or settled by force, and both are worse than a village court.

The volume argument. The subordinate courts were already congested, and taking the smallest cases out of them was expected to help. It is exactly the argument made for the Lok Adalat thirty years later and for the Gram Nyayalaya sixty years later, which is why the whole line of reform is worth studying together.

Advantages

Access. The court sat where the litigant lived. Nothing else on this list matters as much.

Cost. No court fee worth the name, no travel, no lawyer's fee. A dispute worth a hundred rupees could be litigated without spending more than it was worth.

Speed. A summary hearing in the village, often disposed of in a sitting, against years in the ordinary court.

Language and comprehensibility. The proceeding was in the language the parties spoke, without pleadings, and the parties spoke for themselves.

Local knowledge. The panches knew the parties, the field, the boundary and the history, so evidence that would take days to prove in a district court was already known.

Popular participation in justice. Villagers administering justice to villagers is a training in citizenship, which is the argument article 40 makes about self-government generally.

Relief to the ordinary courts. Petty cases kept out of the magistracy.

Conciliation over adjudication. In practice a Nyaya Panchayat settled far more than it decided, and a settlement between neighbours who must go on living together is worth more than a decree.

Disadvantages

Local knowledge cuts the other way. The panch who knows the parties has an opinion about them before the case opens, and often an interest. IMPARTIALITY was the central complaint.

Faction. A village is not a neutral place. Where the panchayat was captured by a dominant caste or a dominant faction, the Nyaya Panchayat was that faction's court, and the weaker party, typically a Scheduled Caste litigant, a woman or a landless man, faced a bench drawn from the other side.

No legal training. A lay bench applying statute law with no training gets it wrong, and gets it wrong in a way that is hard to correct because there is often no reasoned order to correct.

No lawyers. Defended as democratic, this also meant that nobody in the room was under a professional duty to the party or to the law, and an unrepresented villager before an untrained bench is not obviously better off than an unrepresented villager before a magistrate.

Trivial jurisdiction, frozen in place. The monetary ceilings were fixed by statutes that were rarely amended, so what began as a real jurisdiction became too small to be worth invoking.

Politicisation of the panchayat itself. Once panchayat elections became party contests, judicial office in the village became a prize in the same contest.

No enforcement. A fine that the village will not collect is not a punishment.

And in the end, disuse. In most States the Nyaya Panchayats simply stopped being constituted. Elections were not held, vacancies were not filled, and the jurisdiction went back to the magistrate by default. They were not abolished so much as ALLOWED TO LAPSE, which is a distinction worth making in an answer.

A worked example

Two families in a village quarrel over a boundary ridge between their fields, and in the quarrel one man slaps another and breaks a fence. In 1960, in a State that had constituted Nyaya Panchayats, what happened?

Which forum? The Nyaya Panchayat for the circle of villages, sitting under its Sarpanch with a bench of panches, none of them lawyers.

Which parts of the dispute could it take? The slap and the broken fence, being petty and compoundable offences of the kind the State Act scheduled. The boundary itself, if the value was within the civil ceiling; if it was not, the munsif's court in the town.

What could it do to the man who struck the blow? FINE HIM. It could not send him to prison; no Nyaya Panchayat could.

How long did it take, and what did it cost? A sitting in the village, and nothing.

Now ask the question MU is really asking. Suppose one family is of a dominant caste that also controls the panchayat, and the other is not. The panches know both parties, know the ridge, and have known the quarrel for a generation. The advantage of LOCAL KNOWLEDGE and the defect of PARTIALITY are the same fact seen from two sides, and there was no reasoned order to appeal against and no lawyer to make the point.

What would happen to the same dispute today? In most States, the magistrate and the civil court in the town, because the Nyaya Panchayats have lapsed; before a Gram Nyayalaya, if the State has established one; before a Lok Adalat, if it is referred; and, in a Scheduled Area, possibly before the Gram Sabha under section 4(d) of PESA.

The 73rd Amendment left them out

This is the fact that decides the topic. Part IX, inserted in 1992, constitutionalised the panchayat as a unit of SELF-GOVERNMENT: article 243B the three levels, article 243C direct election, article 243D reservation, article 243E a five-year term, article 243G the powers a State may confer, and the ELEVENTH SCHEDULE's twenty-nine matters, which run from agriculture and minor irrigation to libraries, markets and the public distribution system.

Not one of the twenty-nine is a judicial function. Part IX gives the panchayat plans for economic development and social justice, and no jurisdiction over a dispute at all. The judicial half of article 40 was left where it was, in State law that most States had stopped using.

The one central exception is PESA. In the Scheduled Areas, where article 243M excludes Part IX, section 4(d) of the Panchayats (Extension to the Scheduled Areas) Act 1996 makes every Gram Sabha competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and THE CUSTOMARY MODE OF DISPUTE RESOLUTION. That is Parliament preserving a village dispute forum by central law, but by preserving CUSTOM, not by creating a court. It is worked in [Legal Pluralism, and the Forums the State Did Not Create].

So what Parliament did instead was to legislate a professional village court sixteen years later: the Gram Nyayalaya, presided over by a judicial officer with the qualifications of a first class magistrate, which is [Gram Nyayalayas]. Read the two chapters together, because the Gram Nyayalaya is the answer to every disadvantage listed above and it inherits the access advantages only imperfectly.

What this does NOT mean

It does not mean Nyaya Panchayats were abolished. They were left out of Part IX and allowed to lapse in most States; the State Acts largely remain on the books, and section 21 of the Contempt of Courts Act 1971 still speaks of them.

It does not mean they were a failure everywhere. The record differs by State and by decade, and the honest position is that the model's weaknesses are structural rather than accidental.

It does not mean the village should have no forum. Every argument for a Nyaya Panchayat, access, cost, distance and language, remains true, and it is why the Gram Nyayalaya was enacted.

And it does not mean the panchayat has no role in disputes today. It does under section 4(d) of PESA in the Scheduled Areas, and it does informally everywhere, which is the subject of the last chapter of this module.

Quick revision

WHAT: a village court under a STATE Panchayat Act, a lay bench of elected panches, small civil and petty criminal jurisdiction, FINE ONLY and no imprisonment, summary procedure, NO ADVOCATES, revision to a magistrate or district court. WHY: article 40, village panchayats as units of self-government; distance and cost; and relief to the subordinate courts. STATUTORY TRACE at the centre: section 21 of the Contempt of Courts Act 1971 excludes from that Act the contempt of NYAYA PANCHAYATS OR OTHER VILLAGE COURTS, BY WHATEVER NAME KNOWN, ESTABLISHED UNDER ANY LAW.

ADVANTAGES: access at the doorstep; almost no cost; speed; the local language and no pleadings; local knowledge; participation in the administration of justice; relief to the courts; and conciliation between people who must go on living together. DISADVANTAGES: partiality, since the bench knows and often has an interest in the parties; FACTION AND CASTE CAPTURE, which hurts the weakest litigant most; no legal training and no reasoned orders; no lawyers, so nobody in the room owes a professional duty; ceilings frozen at trivial figures; politicisation once panchayat elections became party contests; no enforcement; and finally disuse.

THE END OF THEM: the 73rd Amendment 1992 constitutionalised the panchayat as a unit of SELF-GOVERNMENT and gave it NO JUDICIAL FUNCTION; none of the ELEVENTH SCHEDULE's twenty-nine matters is judicial. The exception is section 4(d) of PESA 1996, preserving the CUSTOMARY MODE OF DISPUTE RESOLUTION in the Scheduled Areas. The successor is the GRAM NYAYALAYA under the Act of 2008, a professional court and not a lay one.

Test yourself

1. What was a Nyaya Panchayat? A village court constituted under a State Panchayat Act, staffed by elected villagers without legal qualifications, exercising a small civil jurisdiction and a petty criminal jurisdiction, empowered to impose fines but not imprisonment, following a summary procedure in the local language, before which advocates did not appear, and subject to revision by a magistrate or a district court.

2. Give four advantages. It sat where the litigant lived; it cost almost nothing; it decided in a sitting rather than in years; and it worked in the language of the parties, who spoke for themselves, before a bench that already knew the facts on the ground.

3. Give four disadvantages. The bench knew and often had an interest in the parties, so impartiality was doubtful; a village faction or a dominant caste that controlled the panchayat controlled the court, which hurt exactly the litigants the forum was meant to serve; the panches had no legal training and left no reasoned orders; and the jurisdictional ceilings, fixed once and rarely amended, shrank the jurisdiction to nothing.

4. What did the 73rd Amendment do about them? Nothing. Part IX made the panchayat a unit of self-government with the powers a State may confer under article 243G, including the twenty-nine matters of the Eleventh Schedule, not one of which is a judicial function. The judicial half of article 40 was left in State law, and in most States the Nyaya Panchayats had already lapsed.

5. Is there any surviving central provision for village dispute resolution? Section 4(d) of the Panchayats (Extension to the Scheduled Areas) Act 1996 makes every Gram Sabha in a Scheduled Area competent to safeguard and preserve the customary mode of dispute resolution; and the Gram Nyayalayas Act 2008 provides a village court of a different kind, presided over by a judicial officer.