Panchayats as an ADR Mechanism - Guest post by Jay Sayta

The following is a guest post by Jay Sayta, a student of NUJS, discussing the traditional panchayats in India as a mode of dispute resolution. He argues that despite the movement towards formal ADR mechanisms including Lok Adalats, the Panchayats still play an important role and hence deserves attention. Jay's writings on gambling laws in India can be accessed here.

History, origins and meaning of Arbitration

Arbitration is generally defined to mean the determination of disputes between parties by a person appointed or chosen by them (arbiter). It is thus an informal method of dispute resolution with flexibility in procedures and rules.  As a method of dispensing justice, arbitration is not a modern phenomenon. The Western idea of private arbitration can be traced back to the Roman and Canon law. Arbitration as a dispute resolution mechanism was used in Common Law since the 14th Century.  However arbitration and other methods of dispute resolution have become of considerable significance after the 19th Century, with the advent of trans-national trade and commerce and with a view to have speedy and inexpensive means of resolving grievances. Thus there is a clause for arbitration in most modern day trading contracts.

History of panchayats dispensing justice 

However in India, panchayats (both village and the notorious ‘khap’ caste panchayats) have been arbitrating on property disputes, torts and even criminal offences like murder and rape since time immemorial. Panchayat (literally five wise men) is a representative body of the members of a particular caste or village (usually headed by the elder most people or the most respected and experienced elder).  One of the most important functions of these panchayats is the dispensing of justice.

Panchayats after independence  

Gandhiji famously said “India lives in its villages” and advocated for a ‘village based political formation’ i.e. Panchayati Raj (Rule by the panchayats) and Gram Swarajya. (Villages ruled independently).  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.” Subsequently, the Balwantrai Mehta Committee (1957) recommended a three-tier Panchayati Raj system in the form of Gram Panchayats (village level), Panchayat Samiti (block level) and Zilla Parishad (district level). Some State governments took spirited measures to establish these Panchayati Raj systems while most turned a blind eye to the Committee’s recommendations. Even the subsequent Ashok Mehta Committee (1978) failed to revitalise the idea of ‘Gram Swarajya.’

The failed attempts at reviving Panchayats prompted the Rajiv Gandhi government to introduce a Constitutional amendment to mandatorily establish the three-tier establishment in every district and delegating important powers to these Panchayats (Eleventh Schedule). The 73rd Amendment Constitutional Amendment delegating powers and authority to the Panchayats was successfully passed in 1992. 

However, the powers of the Panchayats under the Eleventh Schedule does not include ‘arbitration' or ‘mediation.’ Thus, while providing a wide range of powers and responsibilities to the Panchayats, the traditional function of dispensing justice has not been included in the list.

Emergence of Lok Adalats  

An important measure taken by the Government to reduce the backlog of cases and burden on the judiciary was the introduction of the ingenious concept ‘Lok Adalats’ (People’s Courts) under The Legal Services Authorities Act, 1987 to solve disputes by compromise and conciliation. These Lok Adalats have the authority to endeavour to arrive at a compromise and settlement between the parties using the principles of justice, equity and fair play. Lok Adalats have the power to look into any criminal, civil or revenue dispute when the parties mutually agree to do so.

The establishment of such Lok Adalats are undoubtedly an important step in encouraging people to settle disputes through conciliation. However the Lok Adalat system has main drawbacks: Firstly, the requirement of consensus of the parties to approach Lok Adalats or the requirement of the permission of the Court to approach Lok Adalats on request by any party.  

Secondly, Lok Adalats are only organised at intervals and places as deemed fit by the State Government or District Authorities. Hence it may be difficult for people to get speedy justice and more often than not, people are likely to face delays. And lastly, Lok Adalats do not have actual punitive powers but can only endeavour to work for a settlement or compromise or award compensation. If it is not possible to have a settlement or compromise, the parties are allowed to resume proceedings in the court. 

What is required?

Lok Adalats will not get the expected response till they become easily accessible and approachable. Though Lok Adalats may be a good method of awarding compensation in case of certain ‘tort’ cases like motor vehicle accidents, it cannot possibly settle the hundreds of trivial village disputes. Panchayats are already known to settle disputes informally and unofficially, often imposing ‘inhuman’ self-styled punishments. Officially delegating authority to panchayats and municipalities to arbitrate trivial disputes will not only reduce the burden of the judiciary but also allow people to  get ‘instant’ justice. It would also be important to evolve statutory provisions to ‘mandate’ arbitration in less important matters of low pecuniary limit. Also important is the requirement of provisions to give punitive powers to these local self-government bodies. 

The Nyaya Panchayats Bill, 2009 if passed will be the most important and effective method of delivering speedy justice as most of the provisions envisioned are similar to the recommendations in this article. However, implementation and passage of the bill may prove to be difficult.

Compromise and conciliation are deep rooted in Indian psyche and allowing panchayats to officially settle disputes would be the most effective measure in reducing the ever-increasing burden on the judiciary. The decisions of such panchayats are also likely to be abided by the parties as respect for elders is an integral value ingrained in the minds of all Indians.