Establishment of Nyaya Panchayat in Uttar Pradesh and other States in India and its Progress

“Establishment of Nyaya Panchayat in Uttar Pradesh and other States in India and its Progress”

Introduction

Panchayats historically have been one of the fundamental and basic institutions in the village life of India. With the passage of time, their forms and structures have changed. Several factors have contributed to this. The path travelled by panchayats in this country has truly been a long and arduous one. India’s massive attempt to provide access to its rural population through the promotion of Nyaya Panchayats is both theoretically provocative and practically important. India has a strong tradition of adjudication at village level. The term panchayat literally means the “coming together of five persons”, hence meeting council who assembled to judge disputes or determining group policy.  Nyaya panchayats are basically a system of dispute resolution at village level. It can be endowed with functions based on broad principles of natural justice and can tend to remain procedurally as simple as possible. They can be given civil and minor criminal jurisdiction.

The earliest Nyaya Panchayats were the village court established under the Village Courts Acts of 1988. The Royal Commission on Decentralization of 1909, recommended the revival of Nyaya Panchayats having both criminal and civil jurisdiction arising within the village. Since independence almost all states enacted village Panchayats Acts as guided by the directive principles. The village panchayat and nyaya panchayat existed as dual entities in order to have sepration of judiciary from executive. Since a forum for the resolution of disputes with the participation of people in local justice administration is the goal envisaged by Article 39-A of the Constitution of India, It is submitted that nyaya panchayats guided by local traditions, culture and behavioural pattern of the village community instil confidence in the people towards administration of justice.

The law commission in its report in august 1986 indicated that Nyaya Panchayat( hereinafter referred as NP) that “Article 39-A of the Constitution of India directs the state to secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall in particular, provide free legal aid, by suitable legislations and schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by economic or other disabilities. This is the constitutional imperative. Denial of justice on the grounds of economic and other disabilities is in nutshell referred to what has been known as problematic access to law. The Constitution now commands us to remove impediments to access to justice in a systematic manner. All agencies of the Government are now under a fundamental obligation to enhance access to justice. Article 40 which directs the State to 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, has to be appreciated afresh in the light of the mandate of the new article 39A.”

Hon’ble Justice S.B Sinha, Judge Supreme Court of India, emphasizing the importance of Nyaya Panchayats in a lecture delivered to District Judges observed that, “There is also a need to deliberate on the methodologies to be adopted for encouraging justice dispensation through the traditional forum of Panchayats. This age-old institution has found new vigour with the introduction of the 73rd Amendment to the Constitution, and most accordingly to be considered another pillar in the edifice that symbolizes justice. Strengthening the institution of Panchayats and empowering people at the grass-root level to resolve their disputes amicably would solve many of the problems that is faced by conventional justice dispensation machinery in its attempts to percolate to the lowest levels. This would provide a, solution to the problems of access to those living in remote regions.”

Moreover, The Gram Nyayalas Bill, 2007 is also introduced in Parliament and if passed, it provide a systematic and more efficient working of NP in whole of India as it seeks to establish Gram Nyayalayas for the purpose of providing access to justice, both civil and criminal, to the citizens at the grass-roots level and to ensure that opportunities for securing justice are not denied to any citizen by reason of social, economic or other disabilities and for matters connected therewith or incidental thereto.

In my project, therefore i have extensively dealt with the set up, establishment and progress of NP, particularly in the state of Uttar Pradesh and other parts of country also.

Status of Panchayati Raj Institutions in country

The passage of the 73rd Constitution Amendment Act, 1992 marks a new era in the federal democratic set up of the country and provides Constitutional status to the PRIs. The main features of the Act are: (i) constitution of panchayats at village, intermediate (block) and district level; however, panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakh; (ii) regular elections to Panchayats; (iii) reservation of seats for Scheduled Castes /Scheduled Tribes and Women (33%); (iv) setting up of an independent State Finance Commission for strengthening finances of local bodies at all levels; (v)constitution of an independent State Election Commission to hold PRIs elections on a regular basis; (vi) legal status to Gram Sabhas; and (vii) addition of Eleventh Schedule to the Constitution listing 29 Subjects within the jurisdiction of PRIs. Further, the 73rd Constitutional Amendment Act contains provisions for devolution of powers and responsibilities upon panchayats at the appropriate level with reference to (a) the preparation of plans for economic development and social justice; and (b) the implementation of such schemes for economic development and social justice, as maybe entrusted to them. The Provision of the Panchayat (Extension to Scheduled Areas) Act 1996 (PESA) extends panchayats to tribal areas in nine States. It enables the tribal society to shape their own development and preserve & conserve their traditional rights over natural resources.

The status of PRIs in a State can be reviewed in terms of following parameters:

(i) Conduct of Panchayat Elections;

(ii) Devolution of Financial Powers;

(iii) Devolution of Functions and Functionaries;

(iv) Constitution of District Planning Committees (DPCs);

(v) Act 40 of 1996 – Provision of the Panchayat (Extension to Schedule Areas) Act, 1996 (PESA); and(vi)  Status and Empowerment of Gram Sabha.

Historical Background of Establishment of Nyaya Panchayat in State Of UP and State Initiative taken to strengthen PRI:

This whole journey of Panchayats can be delineated into different heads described as under:

During Vedic and post Vedic Times till British Period:

Although early records of exclusive history of panchayats in UP are not available, yet, reference to panchayats in the history from Vedic and post-Vedic times are aplenty. It may be assumed that broadly the structure and functions of the panchayats described therein must have also been valid in the area, which is now called UP. It has been extensively written in the history books that by the time of the last Mughals there was a thriving system of local government.

During British Rule in India:

The British have been blamed for all the ills plaguing the country today. Thus it has been said that the stable village government in India was widely shaken with the arrival of the British who adopted a policy of centralisation. As a result of this the panchayats disintegrated, panchayat functionaries lost their age-old power and functions and tehsildars took the work of village headmen. Thus the government officials became spokesmen of the people and a gulf was created between the rulers and the ruled.

Local self-government received its first impetus during the viceroyalty of Lord Mayo in 1870. The Famine Commission of 1880 emphasised the importance of local self-government. Lord Ripon’s resolution of 1882 on local self-government considered it as a means of popular and political education. However, the issue of local self-government in the country was taken up in right earnest in 1907-08 by the Royal Commission on Decentralisation. This commission recommended formation of Village Panchayats so that the local government might be built up from the bottom. The Government of India Act, 1919 made local self-government a transferred subject, which earmarked the growth of these bodies under the patronage of elected ministers. With this, UP enacted the United Provinces Village Panchayat Act, 1920. Other provinces like Assam, Bengal, Bombay, Central Provinces and Bihar followed suit.

In consonance with the policy of the British rulers to revive the panchayats in the country the objective of the UP Village Panchayat Act, 1920 was to revive them in the province. It sought to confer on panchayats civil, criminal and administrative power. The panchayats were also assigned duties in matters of sanitation, education and the like. No doubt, this Act had many shortcomings: it did not give sufficient freedom to the people to establish panchayats in their areas, there was no provision for election of Panches and the functional resources were hopelessly lacking. But it led to the passing of the UP Panchayat Raj Act of 1947.

The UP Panchayati Raj Act, 1947:

The UP Panchayat Raj Act, 1947 was passed with a view to establish local self-government in the rural areas of UP and to make provision for better administration and development of villages. It provided for the formation of Gaon Sabha and Gaon Panchayat in each village and the Panchayat Courts in a group of villages. The Gaon Sabha was to consist of all inhabitants of the village above the age of 21. The Act provided for election of the Pradhan by the Gaon Sabha through joint electorate for a period of three years. The Act also provided for election of the executive body, that is, the Gaon Panchayat by the Gaon Sabha for three years. Seats were reserved for the SCs and STs and minority communities.

Under this Act the first elections to Gaon Panchayats were held in 1949 and the first Gaon Panchayats started functioning from August 15, 1949. Panchayats Courts were also set up on the same day. When First Five Year Plan began in 1951 Development Committees were formed at the Panchayat Courts level and members nominated to them. Around the same time one Pradhan each was nominated from each tehsil to the District Planning Committee (DPC) which are now defunct (even after the passage of the Constitution Seventy-third Amendment Act, 1992).

Watershed Events in Panchayati Raj in UP  Since 1947 Legislations

1947: Enactment of the United Provinces Panchayat Raj Act, 1947

1952: Amendment to the United Provinces Panchayat Raj Act, 1947

1961: Enactment of the Uttar Pradesh Kshetra Samiti and Zilla Parishad Adhiniyam, 1961

1989: Amendment to the United Provinces Panchayat Raj Act, 1947

1994: Amendment to the United Provinces Panchayat Raj Act, 1947 and the Uttar Pradesh Kshetra Samiti and Zilla Parishad Adhiniyam, 1961

Elections

First elections             :     1949

Second elections       :     1955

Third elections           :     1961

Fourth elections        :     1972

Fifth elections             :     1982

Sixth elections            :     1988

Seventh elections      :    1995 (plains) and 1996 (hills)

Following the report of a Committee of MLAs appointed in 1953-54 to suggest Amendments to the UP Panchayat Raj Act was amended. This Amendment had far-reaching provisions: It merged jurisdiction of Gaon Sabha and Gaon Samaj; Gaon Sabhas were formed in all the villages with population of 250 or more; and Panchayat Courts were re-nominated as Nyaya Panchayats. The second panchayat elections were held in 1955. To boost development of the villages Krishi Samitis were formed in a majority of Gaon Sabhas and these were followed by the constitution of Krishi Utpadan and Kalyan Up-samitis at the same level.

Uttar Pradesh Kshettra Samiti and Zilla Parishad Adhiniyam, 1961:

The year 1961 was a watershed year in the history of Panchayati Raj in UP. During this year Uttar Pradesh Kshettra Samiti and Zilla Parishad Adhiniyam, 1961 was enacted and implemented. During the same year third elections to panchayats were held. These were followed by fourth elections in 1972 and fifth ones in 1982 for which voters’ minimum age was reduced from 21 years to 18 years.

Amendment in 1980:

Yet another major Amendment to the UP Panchayat Raj Act, 1947 was carried out in the early 1980s provided that 30 per cent of the panchayat members’ posts be reserved for women and at least one woman belonging to SCs be represented on the panchayat. The sixth elections conducted in 1988 following this Amendment led to election of over 1.5 lakh women members to the panchayats and of these nearly 66,000 belonged to SCs. Though posts of Pradhans were not reserved for women, 930 women were also elected as Pradhans. From the next year, that is 1989, Jawahar Rojgar Yojana (JRY) was given to the panchayats. This opened up a new set of issues in the Panchayati Raj regime.

It is in this backdrop that following the Seventy-third Amendment to the Constitution of India the United Provinces Panchayat Raj Adhiniyam, 1947 and the Uttar Pradesh Kshettra Samiti and Zilla Parishad Adhiniyam, 1961 were amended through the Uttar Pradesh Panchayat Laws (Amendment) Act, 1994. But before dwelling into this subject a few more observations seem to be necessary for understanding general developmental scenario in the country.

PROFILE OF THE PANCHAYATS

When the new Panchayati Raj laws came into force there were 67 districts in the State. As a result 67 Zilla Panchayats were created. At that time there were 901 developmental blocks in the State and, therefore, as many Kshettra Panchayats were created. And as mentioned above as a result of re-organisation, 58,620 Gram Sabhas were created. These Gram Sabhas were to elect as many Gram Panchayats.

Successive State Governments have created a number of districts in the State, taking the tally to 83 as a result of which the number of Zilla Panchayats has increased to these many districts. No definite information is available as to whether there has been any increase in the number of Kshettra Panchayats as no developmental blocks seem to have been created during the past five years. And definitely there is no increase in the number of Gram Panchayats. At the beginning of the year 1999, the break-up of the three levels of panchayats is presented in Table.

Table: Panchayats in Uttar Pradesh

Sl. No.

Panchayat Tier

Number

1.

Zilla Panchayats

83

2.

Kshettra Panchayats

901

3.

Gram Panchayats

58,620

STATE INITIATIVES TO STRENGTHEN PRI

The 73rd Amendment to the Constitution and amended panchayat laws in Uttar Pradesh present a historic opportunity to enlarge the scope of people’s participation in economic and political decision-making. Ever since the amendment of the panchayat laws the State Government is making a concerted effort to strengthen PRIs. These efforts may broadly be put into three categories: legislative, administrative and support. While the term legislative effort is self-explanatory, administrative efforts include setting up of two commissions and subsequent follow-up action and support includes support provided by the Government or its agencies to Panchayat representatives through trainings, workshops, seminars, information dissemination, etc.

LEGISLATIVE EFFORTS

Soon after the amendment of the then laws related to panchayats in the light of the 73rd Amendment to the Constitution of India, the State Government went on a spree of legislations: it amended and re-amended the already amended panchayat laws, formulated rules and regulations and changed them, issued notifications and withdrew them. Parts of these legislative actions are technical in nature, concerning with the routine things. The remainder actions, however, have strengthened the panchayats, though sometimes they have produced reverse effect too.

Analysis of these legislative actions and their fall-out is a wide subject, enough to lead to a book of this size. Therefore, the subject is being dealt with in the briefest possible form before switching over to administrative and support measures to strengthen the panchayats.

Delimitation of Panchayat

The UP Panchayat Laws (Amendment) Act, 1994, was promulgated on April 22, 1994. Soon its shortcomings came to forth, specially as far as demarcation of panchayat areas in the hill areas and determination of population of backward classes were concerned. Through an Ordinance promulgated within five months, on September 21, 1994, a provision for determining population backward classes, who were provided 27 per cent reservation by the amended laws, was made. The other provision related to clubbing of villages for the purpose of forming panchayat area in the hill areas of the State. By this Ordinance all the villages falling within the radius of 1 km were to be clubbed to form a Panchayat area as against the earlier radius of 5 km. Similarly radius for territorial constituency for election of Kshettra Panchayat member was also decreased from 5 km to 1 km. As against this one-fifth reduction in radius for delimiting Gram Panchayat and territorial constituency for Kshettra Panchayat member, radius for territorial constituency for Zilla Panchayat member was halved from 14 km to 7 km. The argument behind this reduction was that large distances and difficult terrain in the hill area necessitating coverage of all the distances on foot only prevent participation of villagers in Gram Sabha meetings.

ADMINISTRATIVE EFFORTS

Besides legislative efforts, the State Government constituted two commissions: one, the Commission on Devolution of Functions and Powers to the Panchayats, and, two, the State Finance Commission. The former was headed by and IAS officer  Shri JL Bajaj and the latter by the retired Secretary to the UP Vidhan Sabha Shri Bhan Chandra Shukla. The Commission on Devolution of Functions and Powers to Panchayats has come to be popularly known as Bajaj Commission.

Devolution of Functions and PowersThe 73rd Amendment to the Constitution of India has included devolution and local self-government through the three-tier Panchayati Raj structure as a basic feature of India democracy. The Article 243-G of the Act reads:

“the legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to -

(a)The preparation of plans for economic development and social justice;

(b) The implementation of plans for economic development and social justice as may be entrusted to them in relation to the matters listed in the Eleventh Schedule.”[1][2]

Nyaya panchayats: an introductory note

Under section 2(a) of the Uttar Pradesh Panchayat Raj Act, 1947 define nyaya panchayat as “ it means a nyaya panchayat established under section 42 and includes a bench thereof.”

Section 42 deals with the establishment of nyaya panchayat:

Section 42(1) says that the state government or the prescribed authority shall divide a district into circles, each circle comprising as many areas subject to the jurisdiction of Gram Panchayat as may be expedient, and established a nyaya panchayat for each districts.

Provided that the areas of Gram Panchayat within each circle shall, as far as possible be continguous.

(2) Subject to the minimum of ten and maximum of twenty five , every nyaya panchayat shall have such number of members, as may be prescribed, but it shall be lawful for nyaya panchayat to function not withstanding any vacancy therein;

Provided the number of panches is not less than 2/3 of the prescribed strength.