Panchayat Level Mediation For Resolution Of Petty Cases In The State Of Himachal Pradesh - Development And Challenges
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Category: Arbitration & ADR
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PANCHAYAT LEVEL MEDIATION FOR RESOLUTION OF
PETTY CASES IN THE STATE OF HIMACHAL PRADESH:
DEVELOPMENT AND CHALLENGES
Sanjay Pal Chauhan, Ph.D. Scholar, Department of Laws, Himachal Pradesh University, Shimla, India.
ABSTRACT
In India, Panchayats have long played a crucial role in the administration of justice at the grassroots level, particularly in rural areas where formal legal systems can be inaccessible and ineffective. The tradition of informal dispute resolution through mediation has been a hallmark of these judicial panchayats, helping to resolve petty disputes that would otherwise burden the formal judicial system. In Himachal Pradesh, where a significant portion of the hill population resides in rural areas, Panchayat-level mediation serves as a vital tool for resolving everyday conflicts that are mostly related to petty matters. The location of the judicial panchyats in distant and challenging terrain areas have greatly aided in the amicable resolution of petty disputes.
The extension of State justice currently based on the principles of fairness and natural justice through Gram Panchayats greatly benefits the people inhabiting the territory of Himachal Pradesh, who are by nature of peaceful disposition with little tendency towards criminality and turbulence. However, the implementation of Panchayat-level mediation is not without its challenges. These include issues such as lack of separate forum for judicial functions, potential biases, limited legal knowledge, and pressure of settlement. Furthermore, the evolving nature of disputes, coupled with socioeconomic changes in rural areas, adds complexity to the process. In the light of above background, this paper seeks to explore the development and challenges of Panchayat-level mediation in Himachal Pradesh.
It examines how mediation processes have evolved within the Panchayat system, taking into account traditional dispute resolution mechanisms, legal developments, and judicial interventions. The research also addresses the critical challenges faced by this system, including inconsistent training of mediators, lack of awareness among rural communities, and occasional biases in the process. The study aims to provide insights into how Panchayat-level mediation as a
form of dispute resolution can be strengthened and made more effective for the benefit of rural hill people. Keywords: Panchayat, Mediation, Petty Cases, Resolution of Disputes, Himachal Pradesh. I.
Introduction Indeed the process of democratizing the judicial system should commence from the grassroots level either by means of transforming the current judicial system, or through people’s direct participation in the dispute resolution. This will interface well with the process of decentralization of the system of administration of justice that is presently going on in country through the revival of indigenous dispute resolution institutions, such as Lok Adalats, Panchayats, etc. Almost all Indian States, post-independence invested in revival of indigenous community institution of panchayat for performance of the administration and dispute resolution in rural areas. Indigenous Dispute resolution mechanisms have long played a crucial role in maintaining social harmony and tranquillity in rural areas, where traditional systems of governance have relied on community-based approaches.
The Panchayati Raj Institutions, as a decentralized form of governance, hold significant potential for resolving local disputes, particularly petty cases through mediation. Amidst a significant backlog of cases across various levels of the judiciary, the Government has proposed to utilize the untapped potential of gram panchayat-level mediation for resolution of petty cases, inspired by the models of State of Bihar and Himachal Pradesh. 1 The idea is for adoption of ‘people-centric justice system’ in order to address the considerable gap between the justice delivery system’s capacity and its requirements, as a means to ease the burden of courts. Petty matters like trespass, family, cattle grazing, neighborhood issues, and minor offenses of compoundable nature can be addressed ‘out of court’ through a mediated panchayat method.
This initiative underlines the need to address ‘latent justiciable needs’ of people who may not even go to courts due to lack of awareness of their rights or accept or accept discrimination or inequity or oppression as ‘fate’. In the State of Himachal Pradesh, due to its hilly geography and peculiar socio-economic 1 Anubhuti Vishnoi, Minor disputes: Govt proposes Panchayat-Level Mediation Amid Huge Backlog of Cases, THE ECONOMIC TIMES (Nov. 05, 2023, 12:00 AM), https://economictimes. indiatimes. com/news/india/minordisputes-govt-proposes-panchayat-level-mediation-amid-huge-backlog-ofcases/articleshow/104974544. cms? from=mdr
conditions, it is essential for hill people to have access to an affordable and accessible justice system close to their homes. Customarily, family elders or respected persons of the locality mediated disputes at the personal or community level due to the socio-economic effects of such disputes. But due to the social mobility and dispersion of modern urbanized life, it had significantly eroded these mechanisms. Slowly, minor disputes either originated from or caused inter-personal conflicts besieged the courts. As hill people continues to grapple with diverse challenges and conflicts, the significance of panchayat-level mediation as a means of promoting harmony, justice, and peace cannot be overstated. Mediation, as an alternative dispute resolution mechanism, emphasizes self-determination, dialogue, interest orientation, and consensus-building to resolve disputes amicably.
When integrated at the panchayat level, it provides an affordable and accessible justice forum, that is culturally aligned, restore inter-personal relationships, and provide timely resolution process for petty disputes which often do not require formal legal intervention. This localized form of mediation not only reduces the burden on the formal judicial system but also aligns with the values and traditions of rural hill communities of Himachal Pradesh. However, the implementation of Panchayat-level mediation is not without its challenges. These include issues such as lack of separate forum for judicial functions, potential biases, limited legal knowledge, and pressure of settlement. Furthermore, the evolving nature of disputes, coupled with socio-economic changes in rural areas, adds complexity to the process.
This study seeks to explore the development and challenges of Panchayat-level mediation in Himachal Pradesh. The study aims to provide insights into how this form of dispute resolution can be strengthened and made more effective for the benefit of rural hill people. II.
Development of Judicial Panchayats in Himachal Pradesh The spirit of participation of people in the administration of justice is not a new concept. India has a rich diversity of community institutions dealing with resolution of disputes.2 The inhabitants of the hill people have from ancient times possessed an instinctive capacity for local self-government.3 Although, regularly constituted panchayats like the modern do not existed in distant past, but there were unofficial panchayats of traditional type enjoying no official 2 Upendra Baxi, Access, Development and Distributive Justice : Access Problems of the Rural Population 18(3)
JILI
375, 381 (1976). 3 INTERNET ARCHIVE, https://archive.org/details/dli.csl.3089/page/n311/mode/2up (last visited Sept. 5, 2024).
recognition whatsoever. These indigenous panchayats held sway over either single village or group of villages. They were meant essentially and primarily for settlement of disputes and were not expected to deal with any aspect of rural administration or any development activities. Since, the King’s law courts were not within easy access to the hill people, they therefore had to devise their own methods of settling disputes which were informal, quick and effective for them. One of the method developed was the system of consulting siana (wise man). The inhabitants of two or three villages originally formed a petty republics, the affairs of which were managed by a siana (wise man). The aggrieved party would call upon the sianas to address their complaint.
The sianas would typically gather at a santhang or any other suitable location, where both the complainant and the defendant were summoned. Both parties were given the chance to present their cases, after which the sianas would assess the truth of the complaint. Once a clear conclusion was reached, they would deliver their verdict, which was rarely contested. As compensation for their time, both parties would pay the sianas a small sum. It was widely believed that the sianas were generally honest, impartial, and fair in their administration of justice. 4 The other was the creation of village assembly or sabha in the form of panchayats. This panchayat was usually headed by respected members (five in number), of the village community who are wise men, experienced in everyday life of village, had integrity and was honest.
The panchayat was called to decide the disputes between the residents of village and their paramount consideration was the amicable settlement and welfare of disputants. Essentially, a dispute among the community members seems to get settled through “talking it out”. 5 The procedure is designed to delay a definitive decision for as long as possible, with the aim of encouraging the disputing parties to reach some form of compromise. Even if a compromise cannot be attained, the minimal requirement is to maintain at least the fiction of a compromise. But, with the introduction of the British law, the powers of the siana and panchayats were subverted. However, it did not, take long for the Estate rulers to realise the utility and importance of the village tribunals, and soon one after another they started taking interest in
4 INTERNET ARCHIVE, https://archive.org/details/dli.csl.3010 (last visited Sept. 8, 2024).
5 Bernard S. Cohn, Some Notes on Law and Change in North India, 8(1) EDCC 79, 85-91 (1959).
panchayats. As the former Princely States had no panchayat legislation of its own, the Punjab Panchayat Raj Act, 1939 was enforced in some areas of present-day Himachal Pradesh to establish the foundations of Panchayati Raj. These panchayats were allowed, even after the merger of Princely States in 1948, to perform certain civic as well as judicial functions till their abolition in the year 1953. These bodies were far from satisfactory for a variety of reasons, such as irrational territorial limits, absence of sufficient popular elements, lack of financial resources, combination of judicial and executive functions, etc. Post- Independence, there were efforts to revive the indigenous dispute resolution system for the purpose of providing affordability and accessibility of justice to the people of rural areas at their doorsteps.
To achieve this goal, Nyaya Panchayats (village courts) are established at the grass root levels in light of mandate of the Article 40 and Article 39-A of the Constitution of India with the active support of governments. The objectives of these village courts is to “provide access to justice to the marginalised and neglected sections of the society, specifically to reduce ‘barriers to access’ in terms of distance, time, and associated costs; reduce dependence of rural citizens on extra-judicial alternative forms of justice; tackling mounting arrears in legal system by providing for a fourth tier of judiciary with summary procedures; provide for formal participatory justice in rural areas and reducing workload on the tiers of judiciary”.
6 In addition to the ideology of separation of powers, and the goal of an efficient division of labour, the establishment of Nyaya Panchayats (NP) reflects two other key concerns. First, it demonstrates an effort to ensure accessible legal resources for village communities. Second, it signifies a significant move by the State to replace pre-existing mechanisms for resolving disputes in rural areas, and the drive to extend State’s power and constitutionalist ideology to the countryside. Stressing the ‘educative value’ of NP, the Law Commission in its report7 stated that, “village courts would also be carriers of the secular, egalitarian, modernistic legal ideology, and thus assist in the desired transformation of society”. The foundation of mediation in resolution of disputes at village level was laid down under the Himachal Pradesh Panchayati Raj Act (HPPRA), 1952.
The HPPRA, 1952 provides, inter alia, for the establishment of conciliation boards or samjauta samitis in each gram panchayat as per
6 Federation for Fast Justice & Anr vs Union of India & Ors., Writ Petition (C) 1067/2019.
7 Law Commission of India, “114th Report on Gram Nayalaya” (August, 1992).
the mandate of section 47-A. Samjhauta samitis are constituted by the President of the Gram Panchayat comprising five members of the panchayat, including himself to conciliate petty cases through amicable settlement between the parties. The object of the conciliation boards is to offer opportunity to the parties concerned to make amicable settlements of their civic disputes and criminal cases before they seek remedy in the NP, in case samjauta samitis fails. These samities strive to facilitate an agreed settlement of the case. And if settlement agreement is reached, it would be certified with the NP and has the effect of a decree and enforceable in the same manner as a decree under section 37-D of HPPRA, 1952.
While focus of the Gram Panchayats were mainly on the socio-economic functions leaving judicial functions to the NP, but samjhauta samities through Gram Panchayats (GP) still exercises judicial functions which in certain cases have all the powers of NP. However, these samjauta samitis came to close on the introduction of the Himachal Pradesh Panchayat Raj Act, in 1968 to order to separate the socio-economic and judicial functions of Panchayats, as the former functions to be managed by GP and the latter by NP8. The Act of
1968 was enacted with a view to bring uniformity in the old and newly merged areas of the
Punjab hills, which remained enforced till the implementation of 73rd amendment to the Constitution of India. The concept of separate bodies for executive and judicial functions were continued till 1977, when judicial functions were entrusted to the Gram Panchayats and dealt under the separate chapter within the Act of 1968. This amalgamation of judicial functions with socio-economic functions remained unaltered also under the Himachal Pradesh Panchayati Raj Act, 19949. Thus, in all these statutory developments, the key elements of judicial functions continued without much interruption. The jurisdiction of panchayats over judicial functions remains identical from the HPPRA, 1952 Act with offences incorporated in Schedule-I of the HPPRA,
1952 have now been incorporated in the HPPR, 1994 with a few more additional offences.
Moreover, the judicial functions given to NP from the HPPRA, 1952 are continued in the HPPRA, 1994, in the form of separate chapter for judicial function, but without providing for separate judicial institution of NP. This is a significant development as opposed to the national 8Centre for Research in Rural and Industrial Development, https://cdnbbsr.s3waas.gov.in/s316026d60ff9b54410b3435b403afd226/uploads/2023/02/2023022139.pdf (last visited Sept. 11, 2024) 9 The Constitution (73rd) Amendment Act, 1992 was enacted on 24th April, 1993 with a view to give constitutional status, to the Panchayati Raj Institutions. On 23rd April, 1994, Himachal Pradesh enacted the HP Panchayati Raj Act, to give effect to the 73rd Constitutional Amendment Act, 1992.
framework, where Part IX of the Constitution of India does not provide for any specific provision on the ‘justice delivery systems’ at the panchayat level. III.
Significance of Gram Panchayats in Dispute Resolution Generally, the strategy of mediation used earlier for dispute resolution is continuing even today with much greater acceptability. The GP follow this method of compromise for amicable settlement of civil or revenue disputes and criminal cases. The functions envisioned for NP are now being performed by GP as well. According to HPPRA of 1994, Gram Panchayats through mediation and compromise can take cognizance of nearly 38 legal offences while exercising their judicial authority. Interestingly in most instances, disputes are settled outside the judicial panchayat system as the majority of people request the panchayat to bypass legal procedures and resolve matters through mutual agreement. This circumvention can be seen as one of the factors behind the eventual merging of NP with GP.
Gram panchayats while performing judicial functions discharge the criminal, civil, and revenue powers. Civil and revenue suits can be entertained and decided by the GP of the Gram Sabbha area. 10 On the criminal side, offences cognizable by these GP comprises of offences specified in Schedule-III or declared by Government to be cognizable, that are committed within the jurisdiction of a GP. It also includes hearing and deciding of applications for maintenance under section 144 Bhartiya Nagrik Suraksha Sanhita. The substantive provisions and procedural requirements for deciding the suit or offence are laid down elaborately under sections 30 to 76 of HPPRA, 1994. IV.
Panchayat Level Mediation for Resolution of Petty Cases The extent of jurisdiction of Gram Panchayats in civil or revenue disputes, and criminal cases are by large of petty nature. In civil cases, a suit is maintainable up to a pecuniary value of two thousand rupees in matters of suit for recovery of money due on contract or movable property; for compensation for wrong done to moveable property; damages created by cattle trespass; and revenue cases (sums payable on account of village expenses suits), and for arrears of rent by landlord under Himachal Pradesh Tenancy and Land Reforms Act, 1972. 10 Himachal Pradesh Panchayat Raj Act, 1994 § 31, No. 4, Acts of Himachal State Legislature, 1994(India).
In case of petty criminal offences, the Bharatiya Nagarik Suraksha Sanhita, 2023 under section 229, defines “petty offence” as “any offence punishable only with fine not exceeding five thousand rupees, but does not include any offence so punishable under the Motor Vehicles Act, 1988. ” However, petty criminal offences are generally regarded as those offences for which the maximum punishment under the Bharatiya Nyaya Sanhita, 2023 or any other law is imprisonment up to three years. In case of Himachal Pradesh, under the provisions of the Himachal Pradesh Panchayati Raj Act, 1994 Gram Panchayats are empowered to take cognizance of 38 types of offences under various Acts including hearing and deciding applications for maintenance under section 144 of Bhartiya Nagrik Suraksha Sanhita and cases transferred by the revenue court to the Gram Panchayat.
Initially the Gram Panchayats mediates for civil and revenue cases to resolve the issues by compromise. Thereafter, the Gram Panchayat conducts proper trial as per law for disposal of the cases. Hence, many of the categories of petty civil or revenue cases, and criminal offences can be addressed out-of-court. While Lok Adalats established under the Legal Services Authorities Act, 1987 resolve disputes on mutually acceptable terms amicably through a mediated mechanism, the GP under HPPRA, 1994 have also provides special provisions for mediation in disputes. Section 42 of HPPRA, 1994 provides for extension of jurisdiction by the agreement of parties. Both party to the suit, through a written agreement may, refer any civil or revenue dispute, or any compoundable case to GP for determination and disposal of the matter, of which the latter is competent to decide.
Furthermore, GP may compromise any civil or revenue dispute, or decide any compoundable case according to any settlement or promise agreed upon by the parties. The earlier dispute settling mechanisms of compromise through samjhauta samities constituted by GP under HPPRA, 1952, thus are now replaced by the dispute resolution method of mediation. The active and direct participation of parties empowers them in the resolution of their dispute rather than to be depend or bound by the third party. It has been observed that, GP primarily focus on encouraging compromises rather than advising parties to adjudicate on the issues under its jurisdiction.
The common reasons attributed for reporting this approach are people awareness of the numerous hassles involved in going to court, dealing with lawyers, and visiting police stations, and thus prefer to resolve their cases at the GP level to maintain their self-respect within the community, and social pressure often compels parties to reach a
compromise at the Panchayat level.11 In addition, parties put much faith and trust on the GP officials in resolving their issues. V. Challenges of Judicial Panchayats in Himachal Pradesh
The majority of the population (around 89. 97%) of Himachal Pradesh resides in rural areas of the State. The geographical factor of hilly terrain is the major hindrance in accessibility of justice to hill people, since the courts usually are located in urban areas or district headquarters. Considering the transport infrastructure and distance from district or town, it is improbable for hill people to access the courts for their resolution of dispute. These geographical challenges are critically important, as the expense of travel and other related expenses must be repeatedly borne until the legal process is concluded. Additionally, city life is significantly different from that of villages, and navigating an unfamiliar urban environment can be emotionally taxing for someone from a rural area.
When compared with formal legal system, Judicial Panchayats have limited powers and authority to function as institutions of complete self-government. They are still mandated by the rules and regulations of the State government. After the 73rd Constitutional Amendment, Gram Panchayats are the main agents of socio-economic development in rural areas, and don’t provide enough time and dedication for judicial functions. In turn, this causes some kind of pressure on the parties to resort to compromise and settle their dispute. Moreover, the gram panchayat officials pay little heed to the dispute resolution because of their limited knowledge about judicial functions. There are fewer recording of cases in panchayats, since parties do not want to register their case in order to maintain dignity and harmony, and instead interested in solving the disputes verbally.
And even panchayats preferred to not register the cases in order to avoid hassles of judicial proceedings. VI.
Conclusion The courts have not actively positioned themselves as the primary institution for resolving disputes; instead, this role has fallen to them by default with the importance and influence of other institutions have diminished over time12. In the past, many disputes that are now brought 11 Sukhvinder Singh, Participatory Grassroot Justice Delivery System in India: A Case Study of Himachal Pradesh, 8(9) IJSR (2019).
12 ROYER F COOK ET. AL., NEIGHBORHOOD JUSTICE CENTERS FIELD TEST : FINAL EVALUATION
REPORT (U.S. Dept. of Justice 1980).
before the courts would have been resolved by family elders, community leaders, or local tribunals; since candidly these dispute do not require the formal adjudication but need adjustment. However, as the role of these traditional societal institutions in settling interpersonal conflicts has declined, many citizens are left with no choice but to bring their cases to formal courts. The practice of Panchayat-level mediation for resolving petty cases in Himachal Pradesh has proven to be a crucial alternative to the formal judicial system. It reflects a deep-rooted trust in local governance and indigenous dispute resolution mechanisms.
Panchayats, by offering an accessible, cost-effective, and culturally sensitive platform, have succeeded in addressing a wide array of minor disputes through mediation and conciliation, thereby reducing the burden of cases and ease the pressure on formal courts. The location of the judicial panchyats in distant and challenging terrain areas have greatly aided in the amicable resolution of petty disputes. The extension of State justice based on the principles of fairness and natural justice through Gram Panchayats greatly benefits the people inhabiting the territory of Himachal Pradesh, who are by nature of peaceful disposition with little tendency towards criminality and turbulence. However, despite its strengths, this system faces several challenges.
The lack of formal training for Panchayat members in mediation techniques, the potential for bias, and the absence of a uniform framework for case handling pose significant barriers to the effectiveness and fairness of the process. Additionally, the increasingly tilting of functioning of the gram panchayats towards socio-economic development left them hardly any commitment for performing judicial functions in a satisfactory manner. Slender knowledge about judicial functions, and limited powers and authority in disposal of cases creates hindrances in the effective functioning of judicial Panchayats. Further, the social pressures and the informal nature of settlements sometimes compromise the quality of justice, especially in cases involving marginalized people.
To ensure the sustained development of Panchayat-level mediation in Himachal Pradesh, there is a need for a structured approach that includes training for Panchayat members, legal oversight, and a more standardized process for mediation. Balancing traditional values with legal safeguards can enhance the system’s credibility, making it a more robust and fair mechanism for resolving petty cases. Efforts should to revive the defunct system of Nyaya Panchayats to function as independent judicial system detached from the clutches of Gram
Panchayats. Against this background, judicial panchayats can function as ‘pre-litigation mediation’ authorities and significantly reduce the burden on the formal legal system by following “nip in the bud” approach.