Whether Establishment Of Gram Nyayalayas By States/UTs Is Mandatory? Supreme Court To Consider

The Supreme Court today expressed that it would consider the question as to whether establishment and effectuation of Gram Nyayalayas by States/UTs is mandatory under the Gram Nyayalayas Act, 2008 ("2008 Act").

A bench of Justices BR Gavai, Prashant Kumar Mishra and KV Viswanathan was dealing with a public interest litigation (PIL) seeking establishment and effectuation of Gram Nyayalayas in the country as per the mandate of the 2008 Act. Upon hearing Senior Advocate Nidhesh Gupta (acting as Amicus in the matter), it ordered:

"We direct the state governments to give information in the format annexed alongwith the present order. Needless to state that the said information will be given by the states after consulting Registrar Generals of the High Courts...to be furnished to the Court with a copy to the Amicus within a period of 6 weeks from today. The ld. Amicus is requested to prepare a chart giving specifications of the responses of the state governments. The question as to whether it is mandatory for the state governments to establish Gram Nyayalayas or not or as to whether it is optional would be considered separately. However, insofar as the states which are agreed to establishing Gram Nyayalayas, we will examine as to whether the state governments have acted in a positive manner in order to achieve the object of the enactment of providing speedy and affordable and efficient justice to the citizens living in remote areas."

The Court further directed the Union of India to file a fresh affidavit on the compliance of Court's order dated 29.01.2020 as well as on state-wise disbursal of funds made to state governments. Vide order dated 29.01.2020, the Court had directed the Union to consider, in terms of the an Evaluation Study of the Scheme of Establishing & Operationalising Gram Nyayalayas, the proposal to increase the Recurring Head to Rs.15 lakhs per year for a minimum of 5 years with 50% State Government Contribution.

The matter has been listed after 8 weeks.

The hearing witnessed the Amicus take the Court through a chart, which divided states/UTs into 3 categories based on their stance in the matter:

(i) Those which accept that the 2008 Act has to be given effect to;

(ii) Those which say that establishing Gram Nyayalayas is optional and there is no mandate under the 2008 Act that they have to be established;

(iii) North-eastern states, which say that they are exempted under the 2008 Act.

The Amicus submitted that while 15 states/UTs have established or proposed to establish Gram Nyayalayas, 12 have responded in the negative. He pointed out that the second category of states are basing their decision to not establish Gram Nyayalayas on the use of the word 'may' in Section 3 of the 2008 Act (which deals with establishment of Gram Nyayalayas). For context, Section 3(1) reads thus:

"For the purpose of exercising the jurisdiction and powers conferred on a Gram Nyayalaya by this Act, the State Government, after consultation with the High Court, may, by notification, establish one or more Gram Nyayalayas for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district or where there is no Panchayat at intermediate level in any State, for a group of contiguous Gram Panchayats."

The Amicus asserted that the word 'may' has been used at 63 places in the 2008 Act, however, in 8 places, it is used in the sense of options that have been given. With specific reference to Section 3, he said that the word 'may' is used in context of the option to establish Gram Nyayalayas (i) for every Panchayat at intermediate level, or (ii) for a group of contiguous Panchayats at intermediate level in a district, or (iii) where there is no Panchayat at intermediate level in any State, for a group of contiguous Gram Panchayats.

Further, he took the Court through the objects and reasons of the 2008 Act and asserted that the Court can infer whether 'may' was intended to be mandatory or discretionary from the same. Subsequently, he tried to impress upon the Court that the 2008 Act has great potential to de-clog Trial Courts in the short term, and High Courts in the medium term.

"There will be no overlap...all the matters which are going to be covered under this Act will go out and therefore the Trial Courts will be immediately de-clogged. Ofcourse the ripple effect to the High Court will be a little later...but this de-clogging will happen now."

At this point, Justice Viswanathan remarked that if access to justice is paramount, then use of the word 'may' is only a manner of expression. The Legislature, in a polite way, sometimes uses the word 'may' but one has to look at the fundamental rights, directive principles of state policy and the purpose sought to be achieved by the Act, the judge said.

Moving on, the Amicus contrasted the jurisdiction and nature of Gram Nyayalayas with that of Gram Panchayats/Kachehris. He urged that the latter are not free from political influence, are not presided by judicially trained minds, are restricted in scope of jurisdiction, and may also be divided on caste, racial or other community lines.

Justice Mishra, pointing to the existence of courts at intermediate level, raised doubts on the need for establishment of additional Courts: "Almost in every tehsil, we have a civil court...already functioning...create one more court, one more conclusion, one more litigation, whether jurisdiction lies here or there...Article 226 petitions will come to High Courts in every case [clogging them]".

The judge further probed as to who presides over Gram Nyayalayas - regular cadre of judicial officers or officers separately trained - and whether there are separate service rules for them. When it was informed that the presiding officers are judicial officers, and a counsel appearing for Kerala raised a demand for additional funds for expanding Gram Nyayalayas, the judge commented,

"Governments are not providing infrastructure to regular courts...now you are seeking funds for these courts in addition...Courts are functioning in private accomodations, rented buildings...they are in 10 by 10, or 8 by 10 rooms...even for regular courts and High Courts, Kerala government says 'deferred for better times'...".

"Some of the places, they are in godowns", Justice Gavai added.

Justice Mishra further referred to statistics placed on record regarding Karnataka, to note that in 4 years, Mandika Gram Panchayat was called onto decide only 116 cases (48 disposed and rest pending). "One Judicial Magistrate First Class, drawing salary of [...], dealing with only 116 cases in 4 years...and our regular judicial officers deal with thousands of cases...you have to see the other side also", the judge said.

Justice Gavai supplemented by saying that establishment of Gram Nyayalayas will have to be state-specific, depending on requirement. "In Maharashtra, there is a court at every intermediate panchayat level. Therefore this call prima facie will have to be taken by the Chief Justices and the Chief Ministers of every State", opined the judge.

In similar vein, Justice Viswanathan observed that the establishment of Gram Nyayalayas can be "obligatory, but need-based".

Senior Advocate Huzefa Ahmadi, appearing for High Court of Himachal Pradesh, submitted that on the last date, the Court called for a response from the Himachal Pradesh government as it is not establishing Gram Nyayalayas despite repeated reminders by the High Court. In response, Advocate General for HP submitted that talks with the High Court are ongoing, as it suggested establishment of 2 Gram Nyayalayas in Shimla District, but it would be difficult for litigants to reach there.

Case Title: NATIONAL FEDERATION OF SOCIETIES FOR FAST JUSTICE AND ANR. Versus UNION OF INDIA AND ORS., W.P.(C) No. 1067/2019