Non-State Law


THE ROLE OF NON-STATE LAW IN INDIA

I. Introduction

B.S. Cohn (1959) maintains rightly that the way a people settles disputes is part of its social structure and value system. The indigenous and the ‘official’ legal systems differ rather drastically on both these aspects.

Indian villages are ‘multiplex’ societies; and the ‘network of relationships’ thus involved cannot be summarily cut by a decision of the court. Nor do the notions of relevancy engendered by law of procedure and evidence and the winner-take-it-all principle of the adversary system rhyme with the ‘traditional preference for settling disputes through consensus and with liberalism in the notions of relevant matters shown by the indigenous tribunals.

The State Legal System pervasive in urban areas is only slenderly preset in rural areas. The low visibility of state legal system and its slender presence renders official law (its values and process) in accessible and even irrelevant for people. Other factors, such as the language of the law which is alien to about 95 per cent of the people, compound to distance between the state’s law and people. All these variables make the relationship between State Legal System (SLS) and Non-State Legal System (NSLS) a very complex affair. Failing empirically informed evaluation, one can recourse to aprioristic or ideological basis, whether in terms of Gandhi’s ideal of Ram-Rajya or in terms of Henderson’s analysis of traditional conciliation and the growth of democratic legality.

II. Non-State Law

There seem to be three main types of Non-State Law in rural India. Very generally, these are caste-based NSL, community-based NSL and innovative-reformist NSL.

1. The Caste-based NSL

It is based on the view that most individuals in rural India have two sets of predominant social relations, one that ties them to a village community which may be viewed as a vertical set of ties and one that connects them horizontally to their “biradari” and “jati” (sub-caste).

2. The Community-based NSL

It is extend beyond the caste to the village unit itself, though patterns of caste dominance, or of power distribution here intrude, sometimes to a point that a village panchayat becomes the very extension of dominant group government.

3. The Innovative-Reformist NSL

It is dispute institutions like the people’s court (Lok Adalat) which are sponsored by acculturating agents or agencies, with the ideologies which center upon the principle of generation of ‘Lokshakti’ or people’s power for social transformation, and which deny, or circumscribe, the state power.

The dominant form of the organization in each case is set of dispute institutions called Panchayats. It is normally a group of five people who hear and decide dispute mostly when they are summoned to do so but frequently on their own.

There is general agreement that the process of dispute handling, howsoever complex, in ‘jati’ and village panchayats share common features of informality, flexibility, democraticity in decision-making by consensus.

III. Nyaya Panchayat

Nyay Panchayats are village courts, where disputes are setlled between villagers. It is village self government in action at the level of administration of dispute. In India many of the existing state legislation on Panchayati Raj provide for some form of adjudicatory bodies by whatever name they may be prescribed.

A. Evolution

The idea was incorporated in Article 40 as a ‘Directive Principle’ of the Constitution of India which provide that the state should take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.

These fora for resolution of disputes with people’s participation in the administration of justice are in accordance of the constitutional goal mandated in Article 39A of the Constitution.

Moreover on April 20, 1993, the President of India gave assent on Constitutional Amendment Bill known as Constitutional 73rd Amendment Act. The object and reason of this Act makes it clear that the raison de-etre of the Act is to fulfil the mandate of Article 40. Accordingly Part IX was added to the Constitution which specifies the basic structure, composition, powers, functions and elections procedure of Panchayati Raj Institution (PRIs).

B. Silent Features

The Nyaya Pachayats helped in involvement of people in dealing with law and justice at the local level and aid the process of participatory justice. Village panchayats can play a considerable part in bringing about a more just and intergrated social structure in rural areas in developing a new pattern of rural leadership.

Panchayati Raj has many achievements to its credit. Politically speaking, it becomes a process of democratic seed-drilling in the Indian soil, making an average citizen more conscious of his right than before.

Administratively speaking, it bridged the gulf between the bureaucratic elite and the people. Socio-culturally speaking, it generated a new leadership which was not merely relatively young in age but also modernistic and pro-social change in outlook. Finally looked at from the development angle, it helped rural people cultivate a development psyche.

C. Implementation

The 1992 amendment sought to make the PRIs the cornerstone of the process of local self-governance in India. However, 15 years down the line, the realization is fast gaining ground that while the 73rd Amendment promised much to panchayats, it has delivered little.

The laws have not reached the panchayats the villagers in most states simply because the operational law does not exist. The inadequacy in legislation drafting reflecting an absence of a holistic vision for village India, has created an overcrowded regime of paper laws for panchayats.
The law needs to respond to the spirit of the 73rd Amendment. If the laws are not taken to their logical end, through enabling rulers and orders, they will remain paper tigers.

The Institute of Social Science in collaboration with UNICEF reacted to this condition by holding a National Convention of Panchayats Representatives in New Delhi on December 22-23, 2001 on the occasion of the 73rd Constitution Amendment entering the tenth year. In the light of their deliberation, the Convention adopt the 20 points charter of demands.

IV. Lok Adalat

Well-organized local legal system may often almost together ‘oust’ the state legal systems and provide almost idyllic alternatives as is shown by Lok Adalat (people’s court) like in Rangpur, North Gujarat.

Almost all disputes in the region are referred to the Lok Adalat. In the last 25 years, it has settled more than 25.000 disputes. The very fact that the case is brought before it is often enough a valid ground for adjourning proceedings in official courts.

The Court’s decisions are rarely disobeyed. This is because of their intrinsic fairness and community involvement. In some ways, this court achieves a quality of justice still sought for by the state legal system; for example it more effectively protects women’s equal rights of inheritance, matrimonial property, etc.

The Lok Adalat is not an isolated phenomenon, although it may be in several respects, unique.

V. Need for Informal Justice Delivery System

Alongside the colonial law system, Upendra Baxi finds a rich diversity of dispute-resolution institutions based on social entities other than the State. One of the most notable of these are panchayats.

It is argued that Nyaya Panchayats guided by local tradition, culture and behavioral patter of the village community is still confidence in the people towards administration of justice. The Law Commission found the workload of Nyaya Panchayat quite substantial and through that all this was partly sue to lack of elementary legal knowledge and recommend some kind of training programmes for the Nyaya Panchas. However, this and most of the other recommendations still await implementation.

In accordance with the report of Panchayat Raj Ministry came up with the Gram Panchayats’ Bill on 2005 and then the amended one in 2007 which is now lying before the Parliament.

The Gram Nyayalas Bill, 2007 establishes Gram Nyayalas as the lowest tier of the judiciary in rural areas. Each Gram Nyayala shall be headed by a Nyayadhikari who shall have the qualification of a first class magistrate and be from a cadre created by the Governor and the High Court.

VI. Suggestion

In order to strengthen the function and role of Non-State Law institutions, such as Nyaya Panchayats and Lok Adalat, the training have to be extended to the official functionaries so as to enable them to have better appreciation of their own role in carrying out various development programmes.

An effective implementation of any programme lies in the people cooperation, initiative and understanding. The Panchayati Raj system is no exception to this rule. But the distinctive character of the Panchayati Raj system demands peoples’ awareness about the new system and their active participation in taking responsibility more than else.

Beside ‘general awareness’ among rural masses, people need to be enlightened politically, not only about their rights ad duties, but also the nature of Indian Constitution, democratic processes, working of PRIs, concept and relevance of Panchayati Raj particularly the message of 73rd Amendment, one-third of reservation of seats for women, Schedule Castes and Schedule Tribes, and various poverty alleviation programmes and policies for socio-economic transformation.

VII. Conclusion

The debate of Non-State Law institutions as instrument for the dispensation of justice begins from the context of decentralizing justice at the grassroots level.

It was the expectation of outstanding thinkers, social and political activists at the grassroots that with the Amendment becoming a part of the Constitution, decentralized justice will find renewed expression through Non-State Law.

The formal judicial system through regular courts of law is beyond the capacity of an average individual especially from rural areas. Therefore there is need to establish a sound judicial system by law right at the grassroots level for bringing justice to the doorsteps a village people in informal atmosphere free from complex procedures in regular courts and through recognition of local condition, habits, customs and practices.

The Nyaya Panchayats as well as Lok Adalat can serve as ideal instrument of justice delivery at the grassroots level for Indian society.

***

Reading References:

  1. Caste Panchayats and the Regulation of Fisheries along Tamil Nadu’s Coromandel Coast by Marten Bavinck.
  2. Declaration of National Convention of Panchayat Representatives.
  3. Empowerment of Weaker Sections through Panchayats: A Diagnosis by L.K. Tyagi and B.P. Sinha.
  4. Enemies of Panchayati Raj by George Mathew.
  5. Everybody Loves Panchayats by Ash Narain Roy.
  6. From Takrar to Karar by Upendra Baxi.
  7. Justice in Many Rooms: Courts, Private Order in and Indigenous Law by Marc Galanler.
  8. Lok Adalat vs. Conciliation by Dr. Tahali Charan Mohanty.
  9. Panchayati Raj in the Constitution of India by Y.K. Mathur.
  10. Panchayati Raj Institutions: A Search for Efficacious Functioning by Mushtaq Ahmad.
  11. Panchayats and Paper Laws by Videh Upadhyay.
  12. People and Pachayats: Interface and Contradictions by S.P. Punalekar.
  13. Presidential Election and Panchayats by M.S. John and Jos C.
  14. Restructuring of Panchayati Raj Institutions for People-Centered Planning by M. Sam Roy.
  15. Significance of Being Truly Strong by Som Benegal.
  16. Sociology of Law by Aubert.
  17. The Concept of Law in Social Science by M.M. Fealey.

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