What is
Nyaya Panchayat?
India has
a rich history of justice administration system. Nyaya Panchayat is a form of grassroot level justice
administration system in India which has existed since the ancient period.
Traces of Nyaya Panchayat may also be found in Kautilya’s Artha Shashtra . In
the contemporary justice administration system, Nyaya Panchayat finds its place
in the bottom strata of court system: the Supreme court being the highest court
in the country , the High Courts in the
states are the highest of courts of appeals in the State level, which
are above the lower judiciary, i.e., the courts of sessions, judicial
magistrate’s court. Hierarchy wise, Taluka courts are the lowest levels of the
courts which have judicial magistrates as judges. All these courts mentioned
above have judges who are trained judicial magistrates and come from proper
legal background. In cases of Supreme court and High courts, judges are
appointed by way of collegium system from among the senior judges from high
courts and senior lawyers from the bar (in cases of Supreme court and high
courts) and experienced senior judicial magistrates from the lower judiciary (especially
in cases of high courts). Such candidates must fulfil prescribed qualifications
and time period as practitioners. Nyaya Panchayat fall in the lowest strata in
this regard which are basically ‘village courts. They are not headed by trained
judicial magistrates. They are headed by elected representatives from among the
villages. Generally, the Sarpanch heads
the Nyaya panchayat. In the ancient and medieval periods, the
post of Sarpanch used to pass on a hereditary basis. But in the modern time,
this post is given to the elective representative.
Unique
features of Nyaya Panchayat:
Nyaya
Panchayat has got some unique features: this is not a regular court, nut a
village level justice delivery body where resolution of disputes happens in the
presence of five elected representatives who are known as panchas (five). This
body is headed by Sarpanch who is assisted by Sahayak Sarpanch. Generally, the
dispute resolution mechanism follows alternative dispute resolution mechanisms
including mediation, conciliation etc, but in a very informal way. Mediation
may not follow legal process. There is no presence of lawyers in such Nyaya
Panchayats and these Nyaya Panchayats may try only petty cases. They are not
eligible to pass penal sentences as we get to see in Penal Codes: instead, they
may use sanctions like social boycott, Fine, order to return of the stolen item
etc.
Advantages
and disadvantages of Nyaya Panchayat:
While in
one way these Nyaya Panchayats proved advantageous for speedy justice
especially for restitution of justice for petty cases, on the other hand, the
justice delivery system is done by untrained body. Hence it has been often
observed that justice delivery system and the sanctions are baseless, arbitrary
and corruptive. Such justice delivery
system may do more harm than good.
Modernisation
of Nyaya Panchayat system:
Since
independence in 1947, the government has taken steps to modernise nyaya
panchayat system by introducing Panchayat Raj Act, 1947. S.42 of this Act
states 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 the Gram Panchayat as may be expedient, and establish Nyaya
Panchayat of each such circle. It further says that the areas of Gram Panchayat
within each circle shall, as far as possible be contiguous. This Section also
prescribes the number of members to a minimum of ten and a maximum of
twenty-five. It further mentions that the number of the members should not be
less than two-thirds of the prescribed strength.
Appointment
of Panaches and their term is mentioned in S.43, which states
that members of Nyaya Panchayat should
be appointed by the prescribed authority out of the members of a Gram
Panchayat. The number of persons should
be such, as may be prescribed. These members should cease to be member of the
Gram Panchayat and their seats in the Gram Panchayat shall be filled as per the
provisions of this statute. This section further says that if the requisite
number of members of a Gram Panchayat are not available for being Panches of
the Nyaya Panchayat, it shall be lawful for the prescribed authority to fill in
any seat so remaining vacant by nomination from amongst other members of the
Gram Panchayat. All such candidates must possess prescribed qualifications as
prescribed by the competent authority. S 44 speaks about the election of the
sarpanch for nyaya panchayat and says the Panches appointed under Section 43
shall, in the manner and within the period to be prescribed, elect from amongst
them two persons who are able to record proceedings, one as the Sarpanch and
the other as the Sahayak Sarpanch; the proviso attached with this section
further says if the Panches fail to
elect the Sarpanch or the Sahayak as aforesaid the prescribed authority may
appoint the Sarpanch or the Sahayak Sarpanch.
Bench of
Nyaya Panchayat and limitations: S.49 of this Act speaks about
the bench of Nyaya Panchayat and says that the Sarpanch shall form Benches
consisting of five Panches each for the disposal of cases and inquiries coming
up before the Nyaya Panchayat.The formation of Benches, the period for which
they will work including the hearing of part heard cases, the method of
distribution, transfer or re-transfer of work among the Benches and procedure
generally to be followed by them in cases and enquiries shall be governed by
rules. the State Government may prescribe the constitution of Special Benches
for the trial of any class or classes of cases; the State Government may at any
time order for the reconstitution of such Special Bench. Any dispute relating
to the formation of Benches or method of their working, shall be referred to
the prescribed authority whose decision shall be final
This
section strictly states that no Panch, Sarpanch or Sahayak Sarpanch shall
take part in the trial of or inquiry in any case to which he or any relation,
employer, employee debtor, creditor or partner of his is a party or in which
any of this is personally interested.
Powers
and jurisdiction of Nyaya Panchayat:
Nyaya
Panchayat can take up both criminal and civil matters but these must be of the
nature of petty cases.
Jurisdiction
:
This
statute indicates that all criminal cases
triable by a Nyaya Panchayat shall be instituted before the Sarpanch of the
Nyaya Panchayat where the offence is
committed. Similarly, all civil case
shall be instituted before the Sarpanch of the Nyaya Panchayat where the
defendant or, where there are more than one, all the defendants ordinarily
reside or carry on business at the time of the institution of the civil case
irrespective of the place where the cause of action arose.
S.52 of
the Panchayati Raj Act mentions about the offences that may be tried by the
Nyaya Panchayat and these are as follows:
(a) Offences
under section 140, 160, 172, 174, 179, 269, 277, 283, 285,289, 290, 294, 324,
334, 341, 352, 357, 358, 374, 379, 403, 411 (where the value of the stolen or
misappropriated property in cases unde rSections 379, 403 and 411 does not
exceed fifty rupees), 4276, 428,430, 431, 447, 448, 504, 506, 509, and 510 of
the Indian Penal Code,1860;
(b)
Offences under sections 24 and 26 of the Cattle Trespass Act, 1871;
(c)
Offences under sub-section (1) of 10 of the United Provinces District Board
Primary Education Act, 1926;
(d)
Offences under Section 3, 4, 7 and 13 of the Public Grambling Act, 1867.
(e) Any
other offence under aforesaid enactments or any other enactment as may, by
notification in the official Gazette, be declared by the State Government to be
cognizable by a Nyaya Panchayat; and
(f) Any
offence under this Act or any rule made thereunder
This
provision further mentions that the State Government may by order published in
the Official Gazette empower any Nyaya Panchayat to take cognizance of offences
under Section 279,286, 336 and 356 of the Indian Penal Code, 1860 and may
likewise withdraw any offence referred to in clauses (a) to (d) of sub-section
(1) from the cognizance of Nyaya Panchayats generally or such Nyaya Panchayats
as may be specified. Further, any court may also transfer some cases to Nyaya
Panchayat especially relating to an offence under Section 143, 145, 151 or 153
of the Indian Penal Code, 1860, pending before any court, if in the opinion of
such court the offence is not serious.
S.55
discusses about the cognizance of the cases by Nyaya Panchayat. As we
discussed above that such panchayats can take care of petty cases, the section
states that After a Nyaya Panchayat has
been established for any area, no Court except as otherwise provided in this
Act shall take cognizance of any case triable by such Nyaya Panchayat. When a Nyaya Panchayat is suspended,
superseded or dissolved under Section 95, or for any other reason ceases to
function all cases pending before it shall stand transferred to the Court of
competent jurisdiction which shall dispose them of according to law; It further
says that the trial of all such cases in
Court shall commence de novo, i.e., right of the beginning afresh.
Transfer
of cases by courts to Nyaya Panchayat and viceversa:
S. 56
speaks about transfer of cases by Courts to Nyaya Panchayat and says a Court if it finds that a case is triable by
a Nyaya Panchayat, shall, except as provided in sub-section(4) of Section 55
transfer the case to the Nyaya Panchayat of competent jurisdiction which shall
thereafter try the same de novo.S.57 speaks about summary dismissal of
complaint and says a Nyaya Panchayat may dismiss any complaint if after
examining the complainant and taking such evidence as he produces it is
satisfied that the complaint is frivolous, vexatious or untrue.
When
should Naya Panchayat transfer cases to courts?
Nyaya
Panchayat may transfer cases to courts under following circumstances:
i.
it has no jurisdiction to try any case pending
before it.
ii.
the offence involved is one for which it cannot
award adequate punishment, or
iii.
the case
should other wise be tried by a court;
In all
such cases parties to be given information of such transfer to the parties
concerned.
S.59 of
this Act however provides the list of the cases where Nyaya Panchayat may
not have any jurisdiction. It states that no Nyaya Panchayat shall take
cognizance of any criminal case against a person where such person
(a) has
been previously convicted of an offence punishable with imprisonment of either
description for a term of three years or more.
(b) has
been previously fined for theft by any Nyaya Panchayat.
(c) has
been found over to be of a good behaviour under Sections 109 or 110 of the Code
of Criminal Procedure, 1973.
(d)has
been previously convicted under the Public Gambling Act, 1867,
(e) is a
public servant.
What sort
of penalties may be prescribed by Naya Panchayat?
S54
discusses about this and says as follows:
(1) No
Nyaya Panchayat shall inflict a substantive sentence of imprisonment.
(2) A
Nyaya Panchayat may impose a fine not exceeding two hundred and fifty rupees
but not imprisonment may be awarded in default of payment;
No
accused shall be tried for more than three offences in the same criminal case
and the fine that may be imposed on any one accused in a criminal case shall
not in the aggregate exceed two hundred and fifty rupees.
Does Naya
Panchayat have any power for restitution of justice for accused persons? The
answer is YES. S61 discusses about Compensation to the accused and says :
(1) If
any criminal case instituted before a Nyaya Panchayat any person is accused of
any offence triable by a Nyaya Panchayatand the Nyaya Panchayat acquits the
accused and is of the opinion that the accusation against him was false and
either frivolous or vexatious, the Nyaya Panchayat may call upon the
complainant forthwith to show cause why he should not pay compensation to such
accused.
(2) If
after hearing the complainant, the Nyaya Panchayat is satisfied that the
accusation was false and either frivolous or vexatious, it may direct that
compensation not exceeding twenty-five rupees be paid by such complainant to
the accused.
S.62 also
discusses about Nyaya Panchayt’s power to
release of offenders on probation
and says the powers under Section
4 of theU.P. First Offenders Probation Act, 1938, may be exercised by a Nyaya
Panchayat.
The other
functions of the Nyaya Panchayat:
S53
discusses about Security for keeping the peace and states (1) Wherever the
Sarpanch of a Nyaya Panchayat has reason to apprehend that any person is likely
to commit a breach of peace or disturb public tranquility, he may call upon
such person to show cause how he should not execute a bond or an amount not
exceeding Rs. 100 with or without sureties for keeping the peace for a period
not exceeding 15 days.
(2) The
Sarpanch shall after issue of such notice report the matter to a Bench.The
Bench may either confirm the order or discharge the notice after hearing such
person and such witnesses as he may desire to produce.
(3) If
the person required to execute a bond as aforesaid under sub-section (2) fails
to do so, he shall be liable to pay a penalty up to five rupees as the Bench
may fix for every day if the default continues during the period fixed in the
order.
Can Nyaya
Panchayat take up civil matters? The answer is YES. In this matter
the followings must be considered:
a Nyaya
Panchayat may take cognizance of any civil case of the following description if
its value does not exceed one hundred rupees –
a) a
civil case for money due on contract other than a contract in respect of
immovable property;
(b) a
civil case for the recovery of movable property or for the value thereof;
(c) a
civil case for compensation for wrongfully taking or injuring a movable
property; and
(d) a
civil case for damages caused by cattle trespass.
But Nyaya
Panchayat shall have no jurisdiction to take cognizance of the following
civil cases –
(1) a
civil case for a balance due on partnership account, except where the balance
has been struck by the parties or their agents;
(2) a
civil case for a share or part of a share under an intestacy or for a legacy or
part of a legacy under a will;
(3) a
civil case by or against the State Government or the Central Government or a
public servant for acts done in his official capacity;
(4) a
civil case by or against a minor or a person of unsound mind, and
(5) a
civil case the cognizance of which by a Panchayat established under U.P.
Village Panchayat Act, 1920, is barred by Section 25 of the United Provinces
Debt Redemption Act, 1940.
S,69
discusses about the effects of the decisions of the nyaya panchayat and states
that the decision of Nyaya Panchayat on the question of the title, legal
character contract or obligation shall not bind the parties except in respect
of the civil case in which such matter is decided and no conviction ordered by
a Nyaya Panchayat shall by itself operate as, or be the basis of any
disqualification or penalty under any law for the time being in force. a Nyaya
Panchayat shall also have no power to cancel, revise or alter any decree or
order passed by it. A Nyaya Panchayat may, for sufficient reasons to be
recorded, on application made within one month of the date of the decree or
order or knowledge thereof in case personal service of summons has not been
effected, restore any civil or criminal case which has been dismissed in
default or in which a decree or order has been passed ex parte.(as mentioned in
S.79 of the Panchayat Raj Act).
It must
however be remembered that Nyaya Panchayat and Khap Panchayat are not the same.
While Nyaya Panchayat has a legal recognition and its functions are regulated
by laws, khap panchayats do not find any support from laws and may not be
legal.
