Chapter Viii Nyaya Panchayat in India

CHAPTER VIII NYAYA PANCHAYAT IN INDIA CHAPTER VIII NYAYA PANCHAYAT IN INDIA 8.1 Introduction Local self-government, to borrow a phrase from Sydney Webb, is “as old as the hills”. This can be more true of India than any other country of the world. There is sufficient evidence to establish the fact that the institution of local self-government is almost pre-historic, and the conception of local self-government is indigenous to the Indian soil. Municipal governments have flourished in India since times immemorial. While empires rose and fell, village panchayats which formed an integral part of the national life, helped to preserve democratic traditions in social, cultural, economic and political life, survived the onslaughts of centuries of political upheavals and saved Indian society from disintegration.1 2The existence of local bodies in ancient India is a positive proof of the inherent genius of our people to manage local affairs efficiently and on a decentralised basis. The decentralisation of power in the kingdoms of the Maurya and the Gupta period was unique. Such devolution of power was unknown to the western world until modem times. The local governments at different levels, performing many functions, though not very democratic, were sufficiently autonomous. 'Raj' literally means governance or government.3 Panchayat is an ancient institution as antique as India. In fact, it has been the backbone of Indian villages since the beginning of recorded history. Rabindra Nath Tagore also supported and he was of the view that our aims must be to restore to the Villages the Power to meet their own 1 Sir Jadunath Sirkar - Mughal Administration - page 10 2 Ibid 3 http://ed.wikipedia.org/w/index.phptitle=Panchayat & redirect, ‘Panchayat’ literally means assembly (yat) of five (panch) wise and respected elders chosen and accepted by the village community. requirement.4 Gandhiji, the Father of the Nation, in 1946 had aptly remarked that the Indian Independence must begin at the bottom and every village ought to be a Republic with Panchayat, having powers. Gandhiji's dream has been translated into reality with the introduction of the three-tier Panchayati Raj System to ensure people’s participation in rural reconstruction.5 The institution of Panchayati Raj is specifically designed for rural population to take care of the problems of rural areas. It provides the administrative apparatus for implementation of the programmes of rural development.6 The basic objective Panchayati Raj is to evolve a system of democratic decentralization and devolution of power with a view to ensuring rapid socio-economic progress and speedier and inexpensive justice.Traditionally, these assemblies settled disputes between individuals and villages.7 The Nyaya Panchayat was an informal and indigenous form of adjudication, where there was informal hearing, no legal representation, examination of witnesses and judgement pronounced in open court. The term Panchayat literally means council of five. The principle underlying Panchayat is “Panch Parmeshwar” which means God speaking through five. Ensuring a corporate life and being the pivot of administration and real centre of social life, the institutions occupied a prestigious position.8 The village communities have been described as little republics, almost free from external dependency.9 In the view of Will Durant, who is an American thinker “the village community in ancient India - the Panchayat and democracy that have ever been evolved in various parts of the world.”10 Democracy, which derives its strength from the people, needs 4 Developed by ASCOSYS, Guwahati, C P & RD Directorate of Assam 5 Ibid 6http://www.whatisindia.com./isses/mahatmag/index,html 1 Ibid. 8 B.K.Raina, Working of Panchayati Adalats, A Case Study, Cochin University Law Review, p. 33. 9 EJJRapson, Cambridge History of India, (1935) p, 177. 10 As quoted in S.R.Nigam, Local Govt. England, France, U.S.A., U.S.S.R and India (1978) p.216 219 their meaningful participation in local governance to make society vibrant and the country prosperous and strong. The passage of the Constitution (73rd Amendment) Act, 1992 marks a new era in the federal democratic set up of the country and provides Constitutional status to the Panchayati Raj Institutions (PRIs). Consequent upon the enactment of the Act, almost all the States/UTs, except J&K, National Capital Territory (NCT) Delhi and Arunachal Pradesh have enacted their legislations. Except Assam, Arunachal Pradesh, Bihar, NCT Delhi and Pondicherry, all other States/UTs have held elections. As a result, 2, 27,698 Panchayats at village level; 5,906 Panchayats at intermediate level and 474 Panchayats at district level have been constituted in the country. These Panchayats are being manned by about 34 lakh elected representatives of Panchayats at all levels. This is the broadest representative base that exists in any country of the world - developed or underdeveloped.11 In India, majority of the population lives in villages. Today, Panchayats are the bedrock of India’s rural development and poverty alleviation efforts. It has the potential of building a progressive India in harmony with the felt needs and the aspirations of the people. Generally disputes among villagers are of small in nature, which can be decided easily in practical way of settling disputes that is free from the technicalities involved in urban court process. Recently two additional ADR forums originated with main purpose is to access to justice. First, the modem Nyaya Panchayats have been in existence in accordance with traditional village customs as well as post-independence state legislation. There have been several recent suggestions for its implementation on a national scale. Second, the Lok Adalats, have been utilized informally in the past, but has recently received statutory status on the national level.12 11 Developed by ASCOSYS, Guwahati, C P & RD Directorate of Assam 12 The Lawyers, January, 1990, P.6. 220 8.2 History of Nyaya Panchayats In India, Nyaya Panchayats have existed since ancient times and played very important role in dispute resolution in villages. In Vedic age there were in existence of Panchayat republics. The Vedic Sabha and Samiti were having elected bodies including representative in character with Ml voting rights to women. These institutions could probe into the conduct of kings, the misdeeds of the ministers and the abuse of power by the powerful. An ancient Indian republic was a state where the strong were just and weak secure. The Vedic king was the protector of the people i.e., Janaya, along with that the self-governing institutions of ancient India ran parallel in the villages. They were the backbone of the true Indian democracy. 1 T Village elders used to resolve disputes of villagers. These elders acquainted with the people, local customs, conditions, language, habits and practices of these people and so they could easily find out the reason behind any dispute. All the material evidence to prove their respective cases present in village itself and there was no question of concocting evidence arose. The Panchas used to resolve the problems publicly and public opinion acted as a powerful influencing factor. Usually witnesses could not speak lie in front of Panchas and other villagers who knew the truth. Decisions of the Panchas were final and supreme.14 Thus all these facilitated quick, inexpensive and fair decisions. In the ancient Smriti texts we also find reference of some village institutions viz., Kula, Sreni and Puga.15 In 1673 the president of East India Factory at Surat (Aungier) set up community Panchayats in Bombay, which decided disputes amongst people of then- own caste and community. The pre-independence try to bring back to the existence of the local units of administration throw a flood of light on the aspect that some efforts were 13 Ibid. 14 Indian Bar Review, Vageshwari, P,74 ’ Ibid 221 made to reorganize rural self-government through Panchayat. Between ancient, medieval and modem period, the growth of Panchayats had ups and downs. The famous Mayo’s resolution of 1870 gave impetus to the development of local institutions by enlarging their powers and responsibilities, in 1882 Lord Ripon’s provided democratic framework to these institutions. In fact the Mayo Resolution of 1870 on decentralization, Lord Ripon’s famous Resolution of 1882, the Report of Royal commission on decentralization, the Government of India Resolution of 1915, and the Montague-Chelmsford Report of 1918 stand as a testimony to reorganize the working of village courts, through not intended to reproduce the characteristics of old time Panchayats.16 Thus India’s practice has been one long story of seeking access to village people through their participation in the working of village courts. By and large, India created an institutional infrastructure in her quest for public participation.17 British mlers set up their courts to resolve the disputes. The people too realized that the power of State was behind these courts and not behind old village Panchayats. Hence the importance of the Panchayats day-by-day started losing their importance. The commission took into account the subject of local self-govt and strongly recommended development of Panchayats to administer local village affairs. In 1920 in consequence of that many enactments were passed in different states. A lack of systematic control over the administration of justice in villages, characterized the system. Nyaya Panchayaths in accordance with customs decided disputes. Village elders or mlers were in frequently influential in these Nyaya Panchayaths. Sanctions were often in the form of fines, public disfavour or outright banishment from the village. With the advent of British colonialism, which greatly dismpted village life, Nyaya Panchayats fell into disuse. In 1920-21 Gandhi, during the non-cooperation movement, spoke in favour of boycott of law 16 H. Tinker, Foundations of Local Self Government in India, Pakistan and Burma (1954), p.

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