Law Access to Justice Informal Access to Justice

Personal Details

Role Name Affiliation Principal Investigator Prof (Dr) Ranbir Singh Vice Chancellor

National Law University Delhi

Principal Co-Investigator Prof(Dr) G S Bajpai Registrar National Law University Delhi

Paper Coordinator Dr. Bharti Yadav Assistant Professor of Law National Law University New Delhi

Content Writer/Author Dr. Bharti Yadav Assistant Professor of Law National Law University New Delhi

Content Reviewer Prof. B B Pande Visiting Professor National Law University, New Delhi

Description of Module

Description of Module Subject Name Law Paper Name Access to Justice Module Name/Title Informal Access to Justice Pre-requisites Understanding the concept of informal justice Objectives ➢ To build an understanding of the Informal

Modes of Dispute Resolution. ➢ To look at the various types of informal Modes

of dispute resolution. ➢ To bring out a historical perspective of the

various modes of informal dispute resolution mechanism which have either been formalized or exist as separate entity.

➢ To look at the advantages as well as disadvantages of these Systems of Informal Dispute Resolution.

➢ To draw a critical insight into the manner and mechanism of Panchayat Form of Dispute Resolution Mechanism.

Keywords Panchayat, ADR, Alternative Disputes Resolution, Lok Adalats, Legal Aid, Mediation, Negotiation, Arbitration, Dispute, Resolution, Settlement.

Introduction

Justice Dispensation in Indian Legal System has to be an amalgamation of three factors: speedy, effective, and economic. An old adage which has often tainted our legal system is that formal justice is only accessible to the high and the mighty. This is not only against the principles enunciated in the Constitution, but also against the very conception on which Nehru’s India was forged. Justice and its all-encompassing principles were to be made accessible to every person irrespective of the societal or economic stature that one stems from. It was therefore quint essential to have in place a system, which was not only speedier, but reached at every level of governance to ensure that justice was not only manifestly shown to be done, but was actually manifested, and the access to which was made at the doorsteps of every person, particularly those people who lived in villages and who constituted more than seventy percent of the total strength.

In addition to the already existing formal judicial mechanisms, there have been countless other extra – judicial or informal mechanisms, which have been existing from times immemorial, and the reference to which pre – dates the colonial rule, and traces its origin to the laws of the Rig Vedic Aryavrat. Some of these mechanisms were lost in the sands of time, while others, very little in number, had been amalgamated into the already existing copious load of legislations. Be that as it may, Informal Dispute Resolution was one mechanism which was often resorted to, in order to bring an end to disputes between people living in the same locality. It is to this extent that the subject matter of this segment will exclusively be a deliberation into major informal mechanisms of dispute resolution, their wide – felt impact, their typology, as well as their ramifications, both positive as well as negative, and the sanctions appended therein, in order to enforce obedience of the conclusions arrived at by these systems.

Dispute Resolution has always been an essential component of the Indian society. From times immemorial, a few elderly village men, who were widely respected in the society, were always called upon to convene a meeting near a religious place, usually a raised platform of a temple or a mosque, or at other public places, in order to bring out an amicable solution to the conflicts that could not have been resolved otherwise. The reason for so doing was to ensure that the parties opened up to their own elderlies, who were looked upon with reverence, and men of sensibility, and had such qualities which was chiseled out of years of experience, and which had fine-tuned them to assume the role of mediators. Another reason why the village elderly were consulted was because of their acquaintance with the parties, previous knowledge about the nature of the dispute, as well as the actual cause behind it, which may or may not have any relation to the present dispute, and over and above, a relationship with the people of the village, which enabled the parties to repose trust and confidence on them, thereby sharing every possible aspect, with utmost clarity, and without any element of surreptitiousness. Another very interesting element of such a dispute resolution process was that all disputes were governed by the principles of equity and fairness. From the distribution of land, to the claims of ownership on cattle, from determining the village and field areas, to even small trifles, or family disputes, the catchment area of disputes, (the modern term being jurisdiction), was wide reaching and pervasive. The respect and authority commanded over by the elderly was usually the reason why their orders were always abided with, in utmost good

faith and sincerity. However, in case of non – obedience, the social ostracizing was a sufficient sanction to compel obedience and to dispel any aberration.

Historical Overview of the Informal ADR Mechanisms

The System of informal amicable dispute resolution arose out of the burgeoning number of disputes in the society as early as historical advent of market system, and trade and commerce. In early times, references to modes of dispute resolution were through mediation as well as through assisted negotiation. The earliest reference to the concept of Alternative Dispute Resolution mechanism could be found in the Dharma Shastras[1] which was a complete code in itself laying down elaborate rules for healthy governance. These Dharma Shastras also dealt with non – adversarial indigenous methods of dispute resolution. On a more formalistic approach, there was a prevalent system of courts which also convened informal dispute resolution procedures. The ‘Parishad’ was an advisory body on religious matters but it also discharged some judicial functions. ‘Samiti’ was the body for general deliberations where all kinds of policy matters were discussed. This body also discharged legislative and judicial functions .It was the assembly of whole of the People. The most important function of Samiti was the election and re-election of the King.[2] The King considered himself duty bound to participate in the deliberations of the Samiti and thus emerged to be the sovereign body.[3] The ‘Sabha’ was a body of selected persons presided by the king himself. Sabha was the national judicature, due to the reasons that the resolutions of the Sabha were considered to be binding on all the persons.[4] The great scholar Yagnavalkya who in his work Yagnavalkya Smriti, or the treatise on Vedas has given reference of specialized courts which were constituted to dispose of disputes of informal nature. Since caste was a pertinent factor, therefore Kulas were specifically formed to address the disputes which occasioned between various castes and tribes.[5] Other such Courts which were established by the indigenous for the expeditious and informal disposal of disputes were established on the basis of the nature of dispute. References to courts such as Shreni[6] and

Benefits of Informal Access to Justice

EconomicEasily AccessibleLess TechnicalSpeedy Disposal of Dispute Amicable Settlement of Dispute

Puga[7] has been made in the Yagnavalkya Smriti. In the earlier Maurya Period, elaborate rules were laid down in the Arthashastra, in which the significance of dispute resolution processes, and the procedures for dispute settlements was laid down. At that time, India was divided into sixteen Mahajan padas or regions, which were governed by different rulers who were sovereign entity in themselves. These Mahajan padas had their own system of governance, including dispute resolution processes.[8] Adjudicatory bodies such as Parishads were also established, which dealt with matters exclusively pertaining to disputes between traders, merchants, farmers, bankers and guilds.[9] These Parishads were often the associations which were formed by the members of the particular trade, or guild or business, and decided cases on the basis of the principles of justice, equity, good conscience and the applicable customary laws. Even religions other than Hinduism advocated for the resolution of disputes through amicable settlement. According to Lord Buddha, “Meditation brings wisdom; lack of mediation leaves ignorance. Know well what leads you forward and what holds you back; choose that which leads to wisdom".[10]

Philosophers such as Parashar and Patanjali have also said that “Progress comes swiftly in mediation for those who try hardest, instead of deciding who was right and who was wrong.” These informal procedures therefore grew popularity in a very short span of time, and emerged as one of the fastest ways to solve disputes amicably. Even during the period of Mughal rule, disputes were often resolved by Mahajans, who were experienced men from various guilds and often spent time by going to the places where dispute had arisen. They were the first ever known people to provide “justice at door steps” to the people. This system had a combination of two elements: mediation as well as arbitration. The Mahajan tried to resolve the dispute and see if the parties would reach a common ground, however, if the same was not arrived at, the Mahajan was empowered to pass an order, to reach a more equitable determination, and arrive at an order which was based on the principles of justice, equity and good conscience.[11]

Historical Overview

Dharm ShastrasSamiti

Sabha &KhulaYagnavalkya & ArthshastraParishad

Mugal RuleVillage Elder Man

Religious Influence

Prevalent Forums of Informal Dispute Resolution in India

India proudly places itself as a country with myriad communities, diverse and colloquial languages and dialects, and therefore unique types of disputes. Most of the systems which India has either adopted from its western counterparts or devised of its own accord are a standing example of India’s incredible feat in dissolution and resolution of disputes by way of informal mechanisms. In addition to Arbitration, which first saw its advent under the Regulating Acts[12] (The earliest records depict that Arbitrations had been carried out before the High Office of Lord Treasurer and Earl of Godolphin who adjudicated and passed awards in disputes between the East – India Company, and the Crown) and The Charter Acts[13], and then later codified into the Arbitration and Conciliation Acts[14] and Conciliation, which finds its mention for the first time in the Industrial Disputes Act, 1947 and is then condensed into the Arbitration and Conciliation Act of 1996, to the later additions by virtue of amendments brought into the Code of Civil Procedure 1908.[15]

Other systems of extra judicial settlements such as the Gram Nyayalayas as well as the Lok Adalats have been formalized and consolidated into statutes because of their far reaching and effective redressal functioning. The Legal Services Authority Act, 1987 as well as the Gram Nyayalaya Act 2008 has laid down elaborate procedures for the functioning as well as the powers and scope of these bodies. But since the domain of this paper is only restricted to the informal modes of dispute resolution, therefore these mechanisms have been kept out of the contours of this research paper. To put it tersely, Indian society has been a witness to what is popularly referred to as “backlog of cases” and has therefore responded to the pressing need of the society by hardwiring most of the informal systems of dispute resolution into mainstream legal parameters so as to bring in efficiency as well as expediency in the manner in which cases are to be disposed of. However, the most acceptable mode of dispute resolution was to refer the matter to Panchayat. This system of dispute resolution stands as a testimony to the veracity of the success of the dispute resolution system in India. A more critical deliberation has been provided for in the next segment.

Panchayat or Pancha System

A Panchayat consisted of the Sarpanch or Mukhiya, or the village headman whose task was to preside over the disputes brought to it by the members of the villages. This village headman was generally elected by the people of the village, and was often one of the elderly members of the village. There were four other members who were appointed usually on a case to case basis, and were called Panchas and belonged to different strata, who often assisted the Sarpanch in the resolution of the dispute. Usually, these Panchas were chosen on the basis of the nature of the case. These Panchas were elected or nominated by the Sarpanch. In case of dispute of a commercial nature, the Panchas were chosen amongst the trading guilds. In cases of matrimonial disputes, the Panchas were elderly people. If there was an issue involving seeds or cattle, then preference was always given to those people who have been cultivators, or cattle rearing men who were often appointed at the post of Panchas. In so far as the Early Vedic Era was concerned, these village heads were not strictly chosen on the basis of their caste affiliations, a malaise which came to the forefront in the later vedic ages and regrettably continues till date.

Earlier, the election to the post of a Panch or a Sarpanch was made on the basis of the nature of dispute. The jurisdiction of the Panchas also extended to cases which were criminal in nature: from damage to property to incidents of violent clashes, every single case was decided before the Panchas. To this extent, the role of the Panchayat was not reduced to only being facilitators, but the powers given to them were that of adjudicators. Early evidence suggested that a Panch or a Sarpanch could be a man or a woman of immense integrity, although in later phases, the Sarpanch system was widely dominated by men. The sanctions ranged from a simple compensation to the owner of the cattle or a farmer whose crops were destroyed, to as severe a penalty as banishment from the village itself. The societal pressure was the sole ground through which the orders were carried out. But the only impediment was that these systems were strictly territorial. Unlike the modern legal systems, which have extended their overreach to disputes which have not been committed in the territory of a particular region, and may also extend to disputes or offences arising against the person who falls within the territorial jurisdiction, even if the offence was committed outside, these informal dispute resolution systems were only applicable to those people who belonged to the villages, and any other person who was not a member of the community, had no right to agitate his cause, unless and until he had lived in the community for a particular period of time. The orders passed by the Panchayat could not have been enlarged to protect the interest of an individual of their community, who was duped in a different area. It was only to these limited categories of cases, that the dispute resolution mechanism could be triggered. However, this was not universally true. There have been instances when the Panchayats had often extended their jurisdiction to those people who having resided outside, had nonetheless committed burglary, or partaken in some dispute which arose during their temporary stay. Since there was no uniform mechanism in place, therefore every Panchayat developed its own set of un-codified rules. For those disputes which fell out of the category mentioned above, the law of the land prevailed.

As a matter of convention, the proceedings were kept open and the views of all the members of the society were taken into consideration before passing an order. Also, an opportunity was given to every person who had some interest in the property, or anyone who was interested in the outcome of the dispute. Since the proceedings were always in the open, there were umpteen number of witnesses, which in turned ensured sanctity to the determination or order pronounced by the Panchayat, as well as consolidated the system of accountability and fairness in the proceedings. Since the statements were always made in the public, therefore the undertakings given, even if were merely oral in nature, were still taken to be made in good faith and were binding on the parties. Also, every such person including the mediating Panch as well as Sarpanch were under the public gaze, and therefore conducted themselves in a manner consistent with the position that they held. There have also been numerous instances that a Pancha or even the Sarpanch recused himself/herself, if it was found out that the Panch or the Sarpanch had a material interest in the outcome of the proceedings. Often disputes arose of such a nature when a person who was defending his act of encroachment into the land of another was a relative of the Sarpanch or panch, in all such cases, the Pancha always recused themselves, thereby giving new meaning to abidance of the Principles of Natural Justice. Also, the proceedings were largely governed by the rules and procedures that were unique to the indigenous population, with due regard to their practices, their traditions and their beliefs. These Panchayats often were constituted according to the nature of the problem

and therefore accordingly men were chosen who were regarded as experts by virtue of their skills and experience.

As of date, Panchayat system has emerged as one of the most ideal form of solutions to the common village problems. From marital disputes to petty issues of boundary wall and field demarcation, the Panchayats are discharging their solemn function of bringing an end to disputes without actually putting the parties through the unnecessary ordeal of trial or leading evidence. The proceedings are always conducted in public spaces, and every such person who has any stake is given an option to put forth his case. This system ensures transparency and accountability in the procedure, and levels up the faith in these proceedings. With so many witnesses to the proceedings, parties often make very responsible statements, and given undertakings in good faith. However, there is a flip side to it: since the proceedings are conducted in open spaces, the parties may also not be as forthcoming as they usually are, or accepting their follies. Unlike traditional mediation setting, these systems do not envisage a caucus session, (when the parties are separated and are made to give their version of the dispute, and enabling them to be forthcoming about the dispute) and therefore the parties may also be very cautious in sharing their side of the story, which also hampers the process. However, villages are often viewed as an extension of family system and therefore these Panchayats are often conducted to bring about an equitable and just disposal to the problem.

Mahila Mandal/ Mahila Panchayat/ Mahila Manch/ Nari Nyaya Samiti

A Mahila Manch or a Mahila Mandal or a Mahila Nyayalaya or Samiti are often varied terms to describe a mechanism which provides for dispute resolution.[16] Often these bodies are a mixture of both formal as well as informal justice delivery dispensing mechanisms, but their purpose is unified: to bring an end to any women related civil or matrimonial dispute. Under the family Courts Act, 1984 as well as various Police Manuals which have established Mahila Police Stations, these bodies are officially constituted to resolve disputes that have arisen between the parties, and are in the nature of domestic or matrimonial disputes. These disputes may include any instances of temperamental adjustment related problems, to visitation and custody battles, to instances of mental and sometimes physical cruelty of a non – heinous nature, and also general maintenance and support claims for which the parties are often sent to these bodies for an informal solution to their problems. Since most of these bodies are not formally operative, or are not a creature of Statute, they are often managed and funded by NGO’s and other civil societies. In some places, the Mediation and Conciliation Centres often take upon themselves the training and facilitation of the counselors who are entrusted with the task of bringing out a peaceful and amenable solution between the parties. In other places, however, it is left to the individual skill of the counselor to broker peace between the parties, which thereby casts serious doubt on the efficiency of this system. Regrettably, very few empirical studies have been conducted to give out a holistic picture of the efficiency of these systems, yet the sheer fact that the litigation ratio is brought down to less than five percent itself suggests that these sub-cutaneous bodies are efficiently discharging their functions.

There are other women courts of particular types, which are working on an experimental basis, in some areas. These courts are critical for two reasons: (1) all of the mediators are female and (2) they ideally come from the same locality, belong to the same class and have a similar social and cultural background to that of the women in the court’s client base – they

are thus best characterised as ‘peer mediators.’[17] The organisations that run all-woman courts reason that an abused woman — or one involved in some other kind of serious domestic dispute — needs a safe and non-threatening space wherein to air her grievances, one in which those who hear her complaint are not only sympathetically inclined, but are of her own sex, share her cultural values and beliefs and are intimately familiar with local customs and traditions that need to be taken into account when devising a solution to her problems.[18]

Implications of the Informal ADR Procedures

The Informal ADR Mechanisms have rightly been called “Appropriate Methods of Dispute Resolution” for the simple reason that their success is overreaching. From a formal perspective, Mega Lok Adalats which have been established have resolved lakhs of cases annually, but a same statistical overview is not available for the informal procedures and their rates of disposal. Most of the disputes that are resolved are done in the presence of the Panchas and therefore they are never recorded. No formal records are ever kept, and all that remains is the memory of the dispute, which may have occasioned. Also, India being a pluralistic society is still vastly run on caste dynamics and caste politics. It is because of all these reasons that various pressure tactics are employed to bring out a favourable outcome for one party, or to pitch one’s power by the disputants. A dispute between two communities, where the Panchas belong to the so called upper castes would normally rule in favour of the disputants who belong to their own caste.

Khap Panchayats/ Katta Panchayats

This system has been therefore widely corrupted by the malaise of caste politics and the arm twisting strategy of the local politicians. Furthermore, these Panchayats have themselves assumed considerable powers that they have themselves laid down laws and procedures, and sit as sole arbiters for disputes which are no longer within their jurisdictional domain but which also involve questions of subjective morality in the eyes of the Panchayat. These are further exacerbated to impose their own will on the entire community, and any deviants are punished with extreme penalties which can even assume draconian proportions, such as public de — robing or stone pelting, shaving of head or flogging to name a few. In some geographical areas, Khap Panchayats[19] and Katta Panchayats[20] have given rise to law and order situations, where a parallel organization rules the village, which has no legal standing. This body lays down its own rules for righteous and ethical conduct, which is consistent with their own rules and procedures, which may or may not have any firm grounding in law. On the basis of these rules they take suo moto cognizance of cases and without giving any due opportunity sentence them to one or more of the draconian punishments specified above. Issues may be far ranging from inter caste marriages to same Gotra Marriages, and prescribing the age of marriage, which are all in flagrant violation of the constitutional norms which have been laid down. The Hon’ble Supreme Court came down heavily on these establishments and termed them “Kangaroo Courts”, and further opined that they should be “ruthlessly stamped out”.[21] There have been innumerable instances wherein and whereby the Khap Panchayats have inordinately tried to intercede and illegally encroach upon the choice of the bride and groom to marry each other, on the frivolous pretext that Same Gotra Marriages are impermissible. Furthermore, the interference through which the so

called People’s Courts operate, are on account of utmost disregard of the law. In many places, issues such as castigation and severe punishment of a person belonging to a lower caste for drawing water from the well has been resorted to by these so called public bodies. Furthermore, in some areas, husbands and fathers have been given the absolute prerogative to marry away their daughters and to charge dowry on a pro rata basis, reducing the dignity of women into a commodity, a thinking which is never a hallmark of the rich and cultural heritage of our country. The severity and the nature of punishments are not only shocking but also inhumane and draconian. From publically lashing, to pelting of stones, to gross cases of immolation and forced sexual intercourse, and naked parades before the Streets, the Khap Panchayats have turned themselves into an extra illegal body, which is solely commanded by a few men who belong to the era of retrograde thinking, and who use physical force to ensure obedience.

The crisis of jurisdiction or the scope of powers to be used in such proceedings, and the feudal mindset are all significant contributing factors which have led to the convening of these illegal bodies. The uneducated and ill-informed masses and their biased mental attitude and belief system further leads to the mushrooming of these bodies, which have brought disrepute to the system of Panchayats. However in the Arumugam Servai Case, the Supreme Court has given explicit instructions to the local bodies including the administration to immediately bring an end to these bodies, and to re-establish the rule of law in these areas.

Conclusion:

The Panchayat System has done a laudable effort in bringing an end to disputes between the litigants. Although the three tier system of Panchayat Raj Administration has now achieved a constitutional sanctity by virtue of the 73rd and the 74th Amendment Acts of 1993 and 1994. However, the roles which are discharged by them has also suffered direly, because of the new administrative functions which they are supposed to discharge, being the leaders of the community. In earlier times, the Sarpanch or Mukhiya had a dual role cast on him. For every dispute, a fresh Panch were elected, depending upon the nature of the dispute. But in today’s time, it is the elected people who will adjudge every dispute, and therefore may or may not be experts in the area of dispute resolution. Furthermore, in addition to the administrative functions, they are also made custodians of money flowing from all Schemes and policies of the Government, such as NREGS[22], and well as PMGSY[23], and therefore the role of dispute adjudication has taken a back seat. The training of these experts still remains a distant dream, but these offices have now been given a statutory recognition, and therefore they have also been given powers, which ensure that their determinations are taken seriously, and in good faith. Be that as it may, this process of Informal Dispute Mechanism has emerged as one of the most facilitative processes, the most economic processes, as well as the most expedient mechanism for resolution of disputes. Countless complaints and cases have been avoided by virtue of the relentless effort of these Panchayats in ensuring that justice is promptly and effectively delivered to those who have no means to achieve it.

END NOTES

1. Literal Meaning: Code of Conduct, Ancient Treatises on Vedas.

2. S.D.Sharma , Administration of Justice in Ancient India(1988),p71,p72.

3. R.C.Majumdar, The History and Culture of the Indian People: The Vedic Age (1965), p475.

4. Dr. Radha Kumul Mookerjee, Local Government in Ancient India, p22.

5. Kula was a generic term and covered various kind of disputes from a wide array between families, castes, races, or communities.

6. A body constituted for the resolution of disputes between artisans.

7. A body constituted for the resolution of disputes between merchants and traders.

8. P.V.Kane, History of Dharmasastra(1973),p281.

9. Official Mediation Training Manual of India: The Supreme Court Mediation and Conciliation Project Committee.

10.Official Mediation Training Manual of India: The Supreme Court Mediation and Conciliation Project Committee.

11.Anil Xavier, “Mediation: Its origin and growth in India, 16th January, 2008, pp. 67 – 78. http://law.hamline.edu/files/Article%205_Mediation_Its_Origin_and_Growth_in_India_Xavier.pdf

12.Robert Grant, A Sketch of the History of the East India Company from its First Formation to the Regulating Act of 1773, Piccadilly 1813.

13.76th Report of the Law Commission of India.

14.The Arbitration Act of 1940 and the Arbitration and Conciliation Act of 1996.

15.Section 89 of the Code of Civil Procedure, 1908.

16.Sylvia Vatuk, The Women’s Court in India: An alternative dispute resolution body for women in distress, Journal of Legal Pluralism and Unofficial Law, University of Illinois at Chicago, May 2013.

17.Sylvia Vatuk, The Women’s Court in India: An alternative dispute resolution body for women in distress, Journal of Legal Pluralism and Unofficial Law, University of Illinois at Chicago, May 2013.

18.Sylvia Vatuk, The Women’s Court in India: An alternative dispute resolution body for

women in distress, Journal of Legal Pluralism and Unofficial Law, University of Illinois at Chicago, May 2013.

19.Khap Panchayats are often conducted in Haryana and adjoining states.

20.Katta Panchayats are convened in Tamil Nadu.

21.Arumugam Servai v. State of Tamil Nadu, Criminal Appeal No. 958 of 2011, Judgment Dated: 19th April 2011.

22.Mahatma Gandhi National Rural Employment Guarantee Act, 2005.

23.Pradhan Mantri Gram Sadak Yojana, 2000.