Download ALTERNATE DISPUTE RESOLUTION IN RURAL INDIA: A BRIEF STUDY ABOUT PANCHAYAT SYSTEM and more Essays (university) Law in PDF only on Docsity!
ALTERNATE DISPUTE RESOLUTION IN RURAL INDIA: A BRIEF STUDY
ABOUT PANCHAYAT SYSTEM
BY HRISHIKESH JAISWAL & PRAGATI MANDLOI
“All other pleasures and possessions pale into nothingness before service, which is rendered in a spirit of joy.” Mahatma Gandhi Humanity since its arrival on the planet has seen conflicts and wars. Settlement of these conflicts has been an indispensable part of society. One of the ways to measure the development and successful operation of the society is to check the effectiveness of their dispute resolution mechanism. In the early part of history, most of the disputes were resolved through primitive and informal methods. These informal mechanisms gradually transformed into formal and organised methods. The effective resolution of the disputes is considered highly important for achieving the ends of justice. It is believed that the function of law and the legal system that is in force for dispute settlement is to balance conflicting interests in the society.^1 Every society has evolved its own mechanism for dispute resolution and every method has its unique features. The societies throughout the world since long have been using indigenous non-judicial methods for conflict resolution. Most the present societies of the world practice alternate modes of dispute resolution apart from the traditional court model. Alternate Dispute Resolution or ADR is the technique of resolution of conflicts arising between parties alternate to the formal legal methodology or the conventional court system established by the State or the Sovereign government i.e. settlement of dispute outside the court. ADR is an umbrella term which includes all legally permitted processes of dispute resolution other than litigation.^2 This is the aggregate term for all the methods used by the parties to resolve conflicts without bringing the matter into the formal structure of judiciary in the country. What is new is the extensive promotion and proliferation of ADR (^1) The Sociological school of jurisprudence of which Roscoe Pound is the ardent philosopher firmly believes in this functional approach to the law and legal system. He calls it ‘Social Engineering’. Fitzgerald, Salmond on Jurisprudence, p.n.9. (^2) Bryan A. Garner, Black’s Law Dictionary (9th edition.).
models, wider use of court-connected ADR, and the increasing use of ADR as a tool to realize goals broader than the settlement of specific disputes.^3 Also in India, the concept is prevalent since time immemorial. Legal history indicates that down the ages man has been experimenting with procedure for making it easy, cheap, unfailing and convenient to obtain justice.^4 The Judicial settlement of disputes though is the most popular method of dispute settlement in modern era suffers several drawbacks due to its formality.^5 The conventional court system has suffered from several drawbacks these are rigid procedural delays, excessive costs and unnecessary appeals etc. Due to these drawbacks, the sovereign who administers justice through judiciary had to think of alternate modes of dispute resolution in a modern era and ADR emerged as an effective solution. The Alternate Dispute solution is a collective term for techniques like Mediation, Conciliation and Arbitration etc. Out of these techniques, Mediation has got special importance in the current era. It’s a method that usually involves a neutral third party, that is, a skilled helper who either assists the parties of a dispute to reach at a decision by agreement or facilitates in arriving at a solution to the problem between the parties to the dispute.^6 Mediation in its plain and simple meaning is nothing but facilitated negotiation^7. However, comprehensively, mediation may be defined as a voluntary process of dispute resolution where a neutral^8 third party (the mediator) with the use of effective and specialized (^3) Alternative Dispute Resolution, Practitioners’ Guide, Centre for Democracy and Governance, Washington,
(^4) Dr. ShraddhakaraSupakar, Law of Procedure and Justice in Ancient India, Deep & Deep Publication, New Delhi, 1986. (^5) The difficulties include, satisfaction of any one party involved in the dispute which sometimes is not fair, heavy consumption of time and the costs, technicality, etc. (^6) Maneesh Chhibber, ‘Do we need moreion judges? CJI Thakur’s plea to the govt raises key question’. (^7) Tom Arnold, “Mediation Outline: A Practical How-to Guide for Mediators and Attorneys” in P.C. Rao and William Sheffield (Eds.), Alternative Dispute Resolution 210(Universal Law Publishing Company Pvt ltd., Delhi, 1997); See also Stephen B Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole, Dispute Resolution: Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd Edn.). (^8) Neutrality of the mediator is considered a necessary condition not only for conducting proper mediation but also for the very existence of the process called mediation. See Ronit Zamir, “The Disempowering Relationship between Mediator Neutrality and Judicial Impartiality: Toward a New Mediation Ethic”, 11 Pepperdine Disp. Res. L. J. 467(2011); “Non-neutral mediator,” therefore, is an oxymoron. See Christine E. Harrington & Sally Engle Merry, “Ideological Production: The Making of Community Mediation”, 22 Law and Soc’y Rev. 709 (1988).
resolving problems has been very popular in India since time immemorial. Before the formation of Law Courts, people used to resolve their differences themselves through mediation. Mediation was used to solve not only personal problems of both civil and criminal nature but political problems between different kingdoms also. The epics like Mahabharata and Ramayana in ancient India, as well as the ancient texts and formal socio- legal sources governing the conduct of people in ancient India, bears a very strong testimony of the presence of this technique for dispute resolution^16 .Gandhi famously said “India lives in its villages”^17 , Bapu always wanted self-rule i.e. people should govern themselves and he had saw immense potential in the nations villages. He also used to refer the rural India as the real India. India is the world’s second largest nation, as well as its largest democracy, and there is evidence that its citizens rely heavily upon mediation to resolve their disputes^18 .The people who used to mediate the disputes were learned in social, legal, moral and religious principles. These wise men used to have high regard in the society and they held these positions for the welfare of the people, they were neutral and impartial which enabled them to find a solution which was mutually acceptable and beneficial for both the parties. The justice delivery system in ancient India was not separated from the executive, which enhanced the importance of these mediators in conflict management and its resolution. The permanent system for mediation was established which was referred as ‘Panchayat’ in the villages of ancient India^19. The dispute resolution system now known as mediation was normally held by a person of high respect and status among the villagers and such mediation was commonly known as “Panchayat” in olden days. According to Colebrooke, an English scholar and commentator on ancient Hindu law, Panchayats were different systems of arbitration subordinate to the (^16) Law Beacon, Peer-reviewed, Bi-annual Journal Published by Akola Law College, Vol.1 ISBN 978- 81 - 930238 - 0 - 8, pp 92 - 96. (^17) Garg BS. Village First Community Empowerment on Health & Development Based on Gandhian Approach – An Experience of Working in few Villages of Wardha District, Maharashtra Indian J Med Res 2019 , 149, suppl S1: 63 - 67a. (^18) Naidu, M. (2006). INDIAN DEMOCRACY: A CASE STUDY IN CONFLICT RESOLUTION AND PEACE BUILDING. Peace Research, 38(2), 71 - 97. Retrieved May 5, 2020. Available at: www.jstor.org/stable/23607991. (^19) Available at: http://delhimediationcentre.gov.in/history.htm.
regular courts of law.^20 The town headmen with the council comprising of other distinguished individuals used to function as mediators. The individuals were known as “panchas” and were known for their integrity, quality, character and impartiality; they were headed by the “Sarpanch”. When a dispute was submitted to the panchayat, the members along with the parties used to discuss and deliberate and arrive on the settlement which was accepted by both the parties in the dispute and only those disputes where no settlement could reach upon were alluded to the judicial experts for the final decision. Disputes in the early past rarely used to reach law courts. The panchayat used to resolve even complex criminal, civil and personal law matters. The matters were resolved keeping in mind the local conditions, language, habits, customs and practices. In words of Martin, C.J., “arbitration was indeed a striking feature of ordinary Indian life and it prevailed in all ranks of life to a much greater extent than was the case of England. To refer matters to a Panch was one of the natural ways of deciding many disputes in India”^21. The Panchayat were mainly of two types these were, “Caste panchayat” and “Village panchayat”. The Village panchayat mainly performed regulatory functions and also used to deal with civil disputes of villagers relating to land and administering criminal justice. The matters of marriage, rituals and jajmani were dealt by Caste panchayat. In medieval times the panchayat system had to face the blows and scars of foreign rule especially the Mughals but still, the people preferred the indigenous method of dispute settlement over the foreign origin judicial system. The major transformation to the Indian legal system came during the British rule in India. In the medieval times the law was based on religious sources and on practices and customs. The codified statutory laws were written in the English language and administered by the British officers. The foreign legal framework was unknown and difficult for the Indians. The English law was not based on Indian customs, practices and rituals. The British officers were well versed with the English law but had a tough time (^20) P.B. Udgaonkar, Political Institutions and Administration, Motilal Banarsidass Publishers Pvt. Ltd., New Delhi, 1986, p. 209. (^21) Tewari, O.P, The Arbitration & Conciliation Act with Alternative Dispute Resolution, 4th Edition(2005) Reprint 2007, Allahabad Law Agency, Faridabad, pp. 2 - 4.
thus it deserved a place in the Constitution of India. It was for this reason that some provisions in this regard were incorporated in the Constitution of India and it was made obligatory to some extent for the government in India to take measures in this regard.^25 Therefore we have Article 40 of our Constitution which says “The State shall take steps to organise village Panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.”^26 Unfortunately in the early part of the historical backdrop of independent India, not much attention was paid to the development of the panchayat system as the main focus of the state was to make the court system more solid and accessible to the poor Indians. The significance of Judiciary was emphasized to the degree that it raised as the chief dispute settlement system in India. As every case filed had to go through rigid codes and procedure of the adversarial court system, it led to piling of cases in the courts. The English made system of law had strict procedures for example Code of Civil Procedure, Criminal Code and Indian Evidence Act which affected the justice delivery in terms of quality and time. The burdening of judiciary started from the time when the English East India Company started to shift from the Mughal system of Justice to their English Court system. This burdening accelerated after independence as more and more people became educated and empowered. This led the State in search for alternate modes of dispute settlement thus the importance of panchayat was again realized by the government. The then government formed the Balwantrai Mehta Committee in 1957 which recommended a three-tier Panchayati Raj System in the form of Gram Panchayats, Panchayat Samiti and Zilla Parishad in village, block and district level respectively. Certain states took spirited measures to implement the recommendations while others turned a blind eye. The turn of the 21 st^ century saw Globalisation and Privatisation throughout the planet. Due to improvements in transport and communication, more and more people started doing business across the borders. The increasing cross border disputes areconsidered (^25) Part IX and Art.243 of the Indian Constitution make comprehensive provisions for establishment and regulation of Panchayat system. (^26) The Constitution of India, 1950, Art. 40.
responsible for international growth and advancement of Mediation and Arbitration as a conflict resolution mechanism. As all the countries had their own set of laws it created a problem of conflict of laws. Mediation at that point provided a solution wherein without reference to law of any one nation the disputes could be resolved amicably. This inherent benefit of Mediation led to its international acceptance which resulted into generation of vast legal jurisprudence on it. Many legal scholars expect India to be the Mediation hub of the world. The laws governing ADR in India till 1996 were mostly pre-independent and were incompetent to address the emerging concerns^27. All those laws were repealed by the law that came into force in the year 1996 to govern and regulate the process of Arbitration, Conciliation and Mediation in India. The Arbitration and Conciliation Act, 1996 is the law that today regulates the process of Mediation in India along with Arbitration and Conciliation. The Mediation is also governed by the Civil Procedure Code to some extent.^28 The Mediation as per Supreme Court of India is a non-adjudicatory process that is aimed at amicable settlement of disputes between the parties via Mediator.^29 The Supreme Court of India has launched special training programmes for specialized training of mediators. After completion of the program, the mediators become highly efficient in handling the mediation sessions. The organisations such as Indian Institution of Mediation and Delhi Mediation Centre have proved very benevolent in promoting mediation in India. Legal Services Authorities are statutory bodies constituted in the states of India by the Legal Services Authorities Act 1987, as enshrined by article 39-A of the Constitution of India, for providing free legal services for the citizens^3031. If the person is incapable of bearing the expenses the authorities give free legal aid to them. Almost all the states in India have their own legal services authority which is the principal body dealing in the matters of Mediation, Conciliation and LokAdalat. (^27) Before 1996 ADR in India was regulated via Arbitration (Protocol and Convention) Act, 1937; Indian Arbitration Act, 1940 and Foreign Awards (Recognition and Enforcement) Act, 1961. (^28) Section 89 of Code of Civil Procedure 1908 read with Order X, Rules 1A, 1B and 1C. (^29) In Afcons Infrastructure Ltd. and Anr. v. CherianVarkey Construction Co. (P) Ltd. and Ors. (2010) 8 SCC 24 the court equated mediation to the proceedings before Lok-Adalat. (^30) Available at: kelsa.nic.in The Legal Services Authorities Act of 1987. (^31) Available at: legalserviceindia.com.
10 Legal^ Encyclopaedia and awareness should be given to the people to settle their dispute via mediation. The Panchayats who have successfully adopted the said model should be appreciated by the authorities for the same. As majority of the population of India stays in villages this model will be of great importance in providing a very impelling alternative for dispute settlement.
