197‘Justice for All’: A Constitutional Aspiration

One of the many aspirations set out in our Constitution is the operation of a legal system that promotes justice on the basis of equal opportunity.¹ Although incorporated in the segment containing the non-justiciable Directive Principles of State Policy, it is heartening to see that Article 39-A imposes an obligation on the state to secure the operation of such a legal system and ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

The preliminary step in realising this aspiration is through (a) establishing an uninterrupted mechanism for ‘access’ to the legal system, inter alia, physical access to legal institutions such as courts, forums, tribunals, and dispute resolution centres, in other words, reducing barriers to access judicial institutions and (b) identifying justice as the first virtue of legal institutions.² Some Law Commission reports³ have unequivocally stated that the legal system must be equally accessible to all, and several judicial pronouncements have been instrumental in equating the status of ‘access to justice’ to that of right to life under Article 21 of the Constitution.⁴ The legislature has passed a variety of progressive laws such as the Family Courts Act, 1984; Consumer Protection Act, 1986; Legal Services Authorities Act, 1987; and the Gram Nyayalayas Act, 2008. The judiciary has been working in tandem to ensure physical access of litigants to institutions such as Lok Adalats,⁵ gram nyayalayas, mediation and conciliation centres,⁶ and adopting electronic court processes. Such initiatives are in line with the twin goals of the National Mission for Justice Delivery and Legal Reforms set up by the Department of Justice in 2011: (a) increasing access 198by reducing delays and arrears and (b) enhancing accountability through structural changes and by setting performance standards and capacities in the legal system.⁷

In this chapter, I highlight two promising measures adopted by the judiciary in the pursuit of access to justice: (a) the gram nyayalayas set up under the Gram Nyayalayas Act, 2008 and (b) the consumer forums established under the Consumer Protection Act, 1986.⁸ They also work as good illustrations of the ‘concerted effort’⁹ in India to move cases out of the formal courts, with alternate dispute resolution mechanisms assuming increasing significance and taking various forms. However, they fall at two ends of a spectrum when it comes to constructing effective reforms and having the political will for implementation — the consumer forums have been the focus of evolving reforms for improvement, while the gram nyayalayas portray a pathetic picture of poor political will.

Gram Nyayalayas

Gram nyayalayas as ‘forums for resolution of disputes with people’s participation in the administration of justice’¹⁰ were first proposed by the 114th Report of the Law Commission of India, with a view to solve the questions of unconstitutionality and politicisation that plagued the nyaya panchayat system which had been practised since the colonial era. The nyaya panchayat was an informal system constituted by members of the grama sabha of each village. The nyaya panchayats became the object of controversy when the Law Commission opined that (a) nyaya panchayats cannot be treated as judiciary in the proper sense of the term, (b) they may degenerate into mechanical endorsement of untrustworthy recommendations, and (c) several systemic errors and malfunctions had crept into the system rendering it extremely political and ‘distressed’.¹¹

The Gram Nyayalayas Act, 2008 (‘the Act’) came into force in October 2009 mandating the establishment of an alternative forum for grievance redressal at the panchayat level as well as solving the nyaya panchayat constitutionality and politicisation crisis. Gram nyayalayas have been described as ‘strikingly different’¹² from nyaya panchayat in their structure and functioning. Gram nyayalayas are seen to be ‘closer to the “formal courts” in the country than to any indigenous or traditional institutions, real or idealised’,¹³ in an apparent attempt to steadily expand the court system in India.

Taking Justice to Citizens’ Doorsteps

The Act, in its preamble, unequivocally states that the establishment of gram nyayalayas at the grassroot level is ‘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’, thereby mirroring the aspirations behind Article 39-A of the Constitution. The gram nyayalayas were envisioned to be supplementary to the existing formal court system, and not to oust their jurisdiction.

The Act states that the state governments, may by consultation with the respective High Courts, establish one or more gram nyayalayas and the PIB releases estimate a total of 2,500 gram nyayalayas that are to be established in various districts of India. Gram nyayalayas, established at headquarters of every panchayat at the intermediate level,¹⁴ or for a group of panchayats in a district, are presided over by the Nyayadhikari appointed by the state government in consultation with the respective High Court and having the rank of a First Class Judicial Magistrate. The Act mandates that 199the Nyayadhikari periodically visit villages within his jurisdiction and conduct trial or proceedings at any place in close proximity to the place where the parties originally reside or where the cause of action has arisen. Even while the Act equates in status the judgment of the gram nyayalaya to a decree of a civil court, it makes provision for the gram nyayalayas to follow special procedures in civil matters, as may be just and reasonable. Statutorily, the gram nyayalaya seeks to blend, in an unconventional manner, legal formality¹⁵ with convenience of the litigants. The Act goes a step further in seeking to improve physical access of people to courts by providing for mobile courts by the Nyayadhikari where trials and proceedings can take place even outside traditional headquarters.

While the Act empowers gram nyayalayas with both civil and criminal jurisdiction, it also makes provision for dispute settlement in the first instance.¹⁶ The jurisdiction of gram nyayalayas is comparable to that of the Judicial Magistrate First Class or Civil Judge Junior Division. Appeals from gram nyayalayas in criminal cases are directed to the sessions courts and appeals in civil cases are directed to the respective district courts.¹⁷ Figure 1 sets out the jurisdictional limits of the gram nyayalayas.

FIGURE 1. Jurisdiction of Gram Nyayalayas

200The Act also states that a district court or session court may transfer civil or criminal cases pending before any subordinate court(s) to be heard by the respective gram nyayalaya. Such cases can either be retried or be dealt with from the stage they were so transferred, as per the discretion of the gram nyayalaya. Another important feature is that the Act mandates a liaison between the gram nyayalayas and the respective state legal services authority by insisting that the latter prepare a panel of advocates and assign at least two of them to be attached to each gram nyayalaya, for the sake of those parties who are unable to engage an advocate. Further, while laying down the procedure to be followed in civil cases, the Act states that the maximum fee payable on any application is Rs 100. In the interest of expedient justice, the Act mandates that the gram nyayalaya should dispose of an application, that is, any suit, claim or dispute filed before it, within a period of six months from the date of its institution. The Act also mandates that, as far as practicable, the proceedings before gram nyayalayas should take place in one of the official languages of the respective state other than English.

The Act also attempts to strengthen the organisational framework supporting the gram nyayalayas — every police officer within the local limits is bound to assist the gram nyayalaya in the exercise of its lawful authority. The state governments have been assigned the responsibility of determining the nature and categories of officers and other employees required to assist a gram nyayalaya in the discharge of all its functions. Such officers have been designated as ‘public servants’ in accordance with the Indian Penal Code, thereby imposing an amplified standard of care on them. As a checks-and-balances mechanism, the district court judge is given the responsibility to appoint a judicial officer to inspect gram nyayalayas in their district at least every six months.¹⁸

On-the-Ground Implementation

According to a statement by the PIB, the central government was to provide assistance to states for establishment of gram nyayalayas of up to Rs 18 lakhs per court, and recurring expenses up to Rs 3.20 lakhs per court per annum for the first three years.¹⁹ Table 1 sets out the number of gram nyayalayas that were to be set up, along with funds they would need, in accordance with the 12th Five Year Plan.²⁰

TABLE 1. Central Government Scheme for Establishing and Funding Gram Nyayalayas

Unfortunately, these numbers are in stark contrast to the actual number of gram nyayalayas notified and functional currently. A mere 194 gram nyayalayas have been notified so far, out of which only 159 gram nyayalayas have started functioning.²¹ Table 2 sets out state-wise statistics on the relevant numbers, and indicates the release of funds by the government. A comparison of the figures in the two tables portrays a dismal picture.

201TABLE 2. Number of Gram Nyayalayas Notified and Functional

Notes: (i) There are no statistics available on the status of pendency of cases before gram nyayalayas for any of the states in which they are fully functional. The website of the Department of Justice also does not attempt to fill this cavity.

(ii). See the response of Sadananda Gowda, Minister of Law and Justice, Government of India, to the question by Dr Shashi Tharoor, MP in the Lok Sabha, on 5 March 2015, available online at http://doj.gov.in/sites/default/files/budget-session-27-febto7-may_2015.pdf (accessed on 15 December 2015).

Moreover, the Ministry of Law and Justice noted that a majority of states have set up regular courts at the taluk level instead of setting up gram nyayalayas,²² perhaps with a view to avoid the complexities involved in implementation of a new legislation, fresh appointment of Nyayadhikaris, and negligible funding from the central government.²³

Some field studies on the functioning of gram nyayalayas have observed that ‘there is considerable variation in the manner in which the provisions of the Act have been interpreted and applied in different states’.²⁴ One working paper observed that only one of the three gram nyayalayas studied functioned out of dedicated premises, that is, a separate building, while the other two were convened at the panchayat samiti offices of gram panchayats on the dates of hearing disputes.²⁵ While some gram nyayalayas had Nyayadhikaris who heard cases only in one of the court halls in the district court designated as a gram nyayalaya, others used to visit villages on a frequent basis within its jurisdiction for hearings.²⁶ Press releases by the government have also noted that several issues plague the operation of gram nyayalayas, such as the ‘reluctance of police officials and other state functionaries to invoke jurisdiction of gram nyayalayas, lukewarm response of the Bar, non-availability of notaries and stamp vendors, problem of concurrent jurisdiction of regular courts’.²⁷ Further, it has been observed that in most villages, courts are held only once or twice a month while in others, the frequency is even worse,²⁸ mostly due to the lack of coordination between High Courts and state governments.

The gram nyayalaya system has also been criticised by some experts on the ground that ‘it violates the essential foundation of adjudication … it makes a mockery of that which is most sacred to all law — that power, resources, and the quantum of 202private gain will not determine the aims or means of the process that is adjudication’.²⁹

Gram nyayalayas have a long way to go in fulfilling their purpose, whether improving access to judicial institutions or reducing pendency of cases before the formal courts. Despite being excellent models, gram nyayalayas have been grappling with systemic defects, lack of practice of recording case data and status, inadequate funding and worst of all, lack of political will.

Consumer Forums

Since the beginning of the consumer rights movement, consumer forums have been attempting to elevate the position of consumers on the rungs of access to justice. It was to enhance the spirit of consumerism that the Consumer Protection Act, 1986 (COPRA) was enacted, with a view to provide speedy and inexpensive redress of consumer grievances.

The three-tier grievance redressal mechanism that COPRA provides for — with the National Commission at the central, State Commissions at the state level, and District Commissions in each district — has been designed to ensure better access to dispute redressal forums.³⁰ In contrast with the gram nyayalayas, which suffer from institutional absences, the COPRA website claims that 626 district commissions out of a total of 655 across states and union territories are functional, with only 29 being non-functional.

Performance of Consumer Courts

The latest statistics of the total number of cases instituted before the National Commission, State Commissions, and the District Commissions³¹ depict a remarkable cumulative disposal rate, well above 90 per cent, as set out in Table 3.

TABLE 3. Numbers of Cases Pending and Disposed of by Consumer Courts

Most State Commission websites contain well-documented statistics about the numbers of cases instituted and disposed of, as well as percentages of disposal.³² However, the time taken for disposal of each case,³³ lifecycles of cases, across District and State Commissions, and such other quantitative analyses are not possible from the information currently available on these websites.

Administrative Weaknesses

Despite successes of consumer forums, administrative shortcomings — especially, the non-filling up of vacancies in the posts of presidents of commissions — have impeded celebrations. Although the COPRA website presents a positive picture with respect to filling up of vacancies to these posts, several newspaper reports³⁴ and research papers over the past year have expressed concern regarding pendency of cases before consumer forums shooting up due to vacancies in posts.³⁵

Responding to the concerns on pending consumer cases, mainly due to structural and 203administrative difficulties, the Ministry of Consumer Affairs, Food & Public Distribution has recently called for some measures for strengthening infrastructure in the Commissions:³⁶

1. State governments to maintain a panel of candidates at all times for filling up of future vacancies of president and members and to avoid delay in appointments.

2. The National Commission to send circuit benches to visit states more frequently and also hold sittings in each state.

3. Additional benches in State Commissions to dispose of pending cases.

4. Holding Lok Adalats regularly for speedy disposal of cases.

5. Financial assistance by the central government to states to adopt computerisation and networking to facilitate quick disposal of cases.³⁷

6. The National Commission to be provided with six more members to clear backlog of cases and improve disposal rate.³⁸

The Ministry of Consumer Affairs, Food & Public Distribution has also introduced the Consumer Protection Bill, 2015 in parliament, with a view to ‘make provisions for establishment of the Consumer Protection Councils and other authorities for better administration and for timely and effective settlement of consumers’ disputes’.³⁹ One of the key features of the Bill is that it introduces mediation as a mode of consumer dispute resolution through consumer mediation cells attached to the redressal commissions at the district, state, and national levels.⁴⁰ The mediation cells have been proposed with a view to ensure that settlement through mediation has a legal sanctity when initiated through consumer forums.⁴¹

Strengthening Institutions to Safeguard Justice

In theory, both gram nyayalayas and consumer forums are good policy decisions made by the government. They not only attempt to realistically improve physical access to legal institutions but also make to an effort to reduce barriers for access to judicial institutions and demystify the institutional formalities surrounding regular courts.

Although the comparison may be unfair, given that COPRA is more than 30 years old and the gram nyayalaya statute has been in force for only eight years, there is no denying a stark contrast between them in terms of implementation. Effective functioning of gram nyayalayas requires political, executive and judicial will, which has hitherto appeared to be missing. Further, there is a lack of clarity on how the gram nyayalayas will function together with the existing court system, which perhaps is one of the main reasons for delay in implementing them. COPRA has not only helped consumers, but has also reduced the burden of the judiciary significantly and that is one of the reasons for COPRA’s relative success. Other reasons for the visible discrepancies between the implementation of the two statutes are the different arenas — urban and rural — in which they function, as well as differences in levels of awareness amongst people and the impact of technology. The consumer movement has benefited from the increasing use of technology, such as social media and networking sites, and consumer awareness campaigns have assumed creative forms. The beneficiaries of gram nyayalayas do not have these advantages. Approaches by the ministries and government departments in charge of implementation of the two laws (including in relation to funding), have also contributed to the contrasting levels of success.

204As the Indian socio-political-economic ecosystem continues to evolve, justice delivery systems must adapt themselves accordingly.⁴² In the process of this evolution, it is extremely important to ensure that access to justice is not a mere aspiration, finding mention in the manifestos of major political parties in India every five years, but is a realistic notion within the reach of one and all. In this regard, mechanisms such as gram nyayalayas and consumer forums will go a long way in transforming ‘institutions of law’ into ‘institutions of justice’, if practised properly.

Notes

1. Art. 39-A, Constitution of India, 1950.

2. This is an extension of Rawls’ theory on the interplay between fairness and justice in his masterpiece A Theory of Justice in which he hypothesised the veil of ignorance. Behind the veil, no person has knowledge of another’s status or position in society, intelligence or strength, and this ignorance would treat one and all with fairness and thus lead to a scheme of justice.

3. Report Nos. 114, 222, 230, and 245 of the Law Commission of India.

4. Imtiyaz Ahmad v. State of U.P., (2012) 2 SCC 688.

5. According to the National Legal Services Authority, the National Lok Adalat held simultaneously across India on 23 November 2013 claims to have settled 71,78,178 cases in all.

6. According to the Law and Justice Minister’s speech at the Conference of Chief Ministers and Chief Justices of the High Courts on 16 August 2009, every High Court in India has a functional conciliation and mediation centre.

7. Press Information Bureau (PIB) press release dated 13 August 2012.

8. I wish to thank Professor Robert Moog, Department of Political Science, School of Public and International Affairs, North Carolina State University, for his valuable guidance and references on studies on the working of consumer forums and gram nyayalayas in India.

9. Robert Moog. 2008. ‘The Study of Law and India’s Society: The Galanter Factor’, Law and Contemporary Problems, 71(2): 129–137, p. 129. Also available online at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1470&context=lcp (accessed on 18 December 2015).

10. Law Commission of India. 1986. 114th Report on Gram Nyayalaya, p. 18. Available online at http://lawcommissionofindia.nic.in/101-169/Report114.pdf (accessed on 18 December 2015).

11. Law Commission, Gram Nyayalaya, p. 18.

12. Shishir Bail. 2015. ‘From Nyaya Panchayats to Gram Nyayalayas: The Indian State and Rural Justice’, The Socio-Legal Review, p. 101. I wish to thank Shishir Bail, Azim Premji University, Bangalore, for providing valuable insights into his field studies on gram nyayalayas in some districts of India.

13. Bail, ‘From Nyaya Panchayats to Gram Nyayalayas’, p. 102.

14. According to Art. 243(c) of the Constitution of India, intermediate level is ‘a level between the village and district levels specified by the Governor of a State by public notification’.

15. S. 10 of the Act states that every gram nyayalaya shall use a seal of the court in the form and dimensions prescribed by the High Court.

16. Bail, ‘From Nyaya Panchayats to Gram Nyayalayas’. The author conducted field studies in three selected gram nyayalayas and found that gram nyayalayas deal with far more criminal cases than civil cases.

17. The types of cases, civil and criminal, which can be tried by gram nyayalayas have been listed out in the First and Second Schedules to the Act.

18. Nicholas Robinson. 2009. ‘Cause for Optimism’, available online at http://accountabilityindia.blogspot.in/2009/09/gram-nyayalayas-cause-for-optimism.html (accessed on 2 January 2016).

19. PIB release dated 9 March 2015. As per the proposal, the central assistance to states was of Rs 30.30 lakhs for non-recurring expenditure along with Rs 9.35 lakhs per annum for the first five years of its operation towards recurring expenditure. Rs 20.92 crores has been disbursed to the states of Rajasthan, Maharashtra, Madhya Pradesh, and Odisha under the scheme so far.

20. Swaniti Initiative. 2015. ‘Development of Infrastructure Facilities for Judiciary including Gram Nyayalayas’, available online at http://www.swaniti.com/wp-content/uploads/2014/05/Development-of-Infrastructure-Facilities-for-Judiciary-including-Gram-Nyayalayas_v1-1.pdf (accessed on 18 December 2015).

21. PIB release dated 9 March 2015.

22. 205PIB release dated 9 March 2015.

23. When I approached the administrative office dealing with gram nyayalayas in Karnataka (within the High Court of Karnataka premises), I was informed that two gram nyayalayas have been notified for Karnataka, in Chikkaballapur and Gauribidanur districts. However, neither has been put in operation, and instead, the taluk-level courts in these localities have been made fully functional.

24. Shishir Bail and Sandesh Kotte. 2014. ‘Gram Nyayalayas and Access to Justice in India’. Unpublished paper, available online at https://www.academia.edu/9822842/Gram_Nyayalayas_and_Access_to_Justice_in_India (accessed on 10 January 2016).

25. Bail, ‘From Nyaya Panchayats to Gram Nyayalayas’. The author conducted a field study of three gram nyayalayas in Bassi Taluka (Rajasthan), Haveli Taluka (Maharashtra), and Gwalior Taluka (Madhya Pradesh).

26. Bail, ‘From Nyaya Panchayats to Gram Nyayalayas’, p. 93.

27. PIB release dated 9 March 2015.

28. DowntoEarth. 2014. ‘Where are Rural Courts?’, DowntoEarth, 30 June, available online at http://www.downtoearth.org.in/coverage/where-are-rural-courts-44754 (accessed on 15 December 2015).

29. Menaka Guruswamy and Aditya Singh. 2010. ‘Accessing Injustice: The Gram Nyayalayas Act, 2008’, Economic and Political Weekly, 45(43): 19.

30. In order to help achieve the objects of the COPRA, the National Commission has also been conferred with the powers of administrative control over all the State Commissions by calling for periodical returns regarding the institution, disposal and pendency of cases. The National Commission is also empowered to issue instructions regarding (a) adoption of uniform procedure in the hearing of the matters, (b) prior service of copies of documents produced by one party to the opposite parties, (c) speedy grant of copies of documents, and (d) over-seeing the functioning of the Commissions. See, http://ncdrc.nic.in/ (accessed on 15 December 2015).

31. As available on the website of the National Commission, as of 20 December 2014. The independent statistics for cases instituted, pending and disposed of before all the three tiers independently are provided at http://ncdrc.nic.in/.

32. The disposal percentages in the State Commissions range from 59.62 per cent (Nagaland) to 99.14 per cent (Himachal Pradesh). The District Commissions, cumulatively, seem to be performing much better than the State Commissions in terms of disposal percentage, with Mizoram (98.99 per cent) and Lakshadweep (78.31 per cent) being the states/union territories with the best and worst figures respectively. Available online at http://ncdrc.nic.in/ (accessed on 15 December 2015).

33. Some State Commission websites contain disposal-related data on cases, but in the context of timeframes prescribed by the COPRA. For instance, the Himachal Pradesh State Commission, which claims to have the highest disposal rate in India, indicates that only 68.88 per cent of its cases are disposed of within prescribed time norms. See, http://hpconsumercommission.nic.in/stat.htm (accessed on 15 December 2015).

34. U. Anand Kumar. 2015. ‘Pendency Rises in Consumer Courts’, New Indian Express, 23 August, available online at http://www.newindianexpress.com/thesundaystandard/Pendency-Rises-in-Consumer-Courts/2015/08/23/article2988156.ece (accessed on 15 December 2015).

35. Anuja Jaiswal. 2015. ‘Vacancies in Consumer Forums Add to Pending Woes Across Chhattisgarh’, Times of India, 12 January, available online at http://timesofindia.indiatimes.com/city/raipur/Vacancies-in-consumer-forums-add-to-pending-woes-across-Chhattisgarh/articleshow/45856566.cms (accessed on 15 December 2015). No cases are being taken up by commissions owing to vacancy in the president’s post, despite the COPRA clearly stating that whenever a vacancy occurs, the senior-most member of the commission should discharge the functions of president. The COPRA also mandates, in S. 29-A, that no act or proceeding of any of the commission shall be invalid ‘by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof’.

36. PIB release dated 11 December 2015.

37. According to a PIB release dated 10 March 2015, hardware has been supplied at 550 consumer forums (34 State Commissions and 516 district consumer forums) and online access has been provided to 521 consumer forums (33 State Commissions and 488 district consumer forums).

38. As discussed during the National Conference on ‘Effective Functioning of Consumer Fora’ organised by the Ministry of Consumer Affairs, Food and Public Distribution on 29 May 2015 in New Delhi.

39. Preamble of the COPRA Bill.

40. Manohar S. Kamath. 2015. ‘Changes in Consumer Protection Act: Devil is in Implementation’, Deccan Herald, 28 January, available online at http://www.deccanherald.com/content/456083/changes-consumer-protection-act-devil.html (accessed on 15 December 2015).

41. Ministry of Consumer Affairs. 2014. ‘Comparative Statement on Proposed Amendments to the Consumer Protection Act, 1986’, 5 November, available online 206at http://consumeraffairs.nic.in/consumer/writereaddata/Comp%20Statement%20CP.pdf (accessed on 15 December 2015). The amendments are, however, silent on the reasons for interminable delays in the passing of orders, the reasons for continuance of specific formats for complaints, methods to reduce pernicious adjournments, and prolonged arguments or for time-bound disposal of cases.

42. Professor Moog aptly summarises this need of the hour: ‘As the law-and-society movement amply demonstrates, the law and the actors involved in enforcing and interpreting it do not reside isolated in a rule-bound universe of their own making, but must interact with societal forces on a daily basis and respond to economic and political changes and demands.’ See, Moog, ‘Study of Law and India’s Society’, p. 137.