Whether establishments of Gram Nyayalayas by states/UTs are mandatory? Supreme Court to consider

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

A bank of Judges BR Gavai, Prashant Kumar Mishra and KV Viswanathan was dealing with a public interest litigation (PIL) seeking the establishment and effectuation of Gram Nyayalayas in the country in accordance with the mandate of the Act of 2008. On hearing Senior Advocate Nidhesh Gupta (acting as Friend in the matter), ordered:

“We direct state governments to provide information in the format attached to this order. Needless to say, the said information will be furnished by the states after consultation with the Registrars General of the High Courts… to be furnished to the Court with a copy for the Amicus within 6 weeks from today. It is requested to the ld. The question whether it is mandatory for state governments to establish Gram Nyayalayas or not or whether it is optional would be considered separately. However, to the extent that the states that have agreed to establish Gram Nyayalayas, we will examine whether the state governments have acted in a positive manner in order to achieve the objective of the enactment of providing quick, accessible and efficient justice to citizens living in remote areas.“

The Court further directed the Union of India to file a fresh affidavit on compliance with the Court’s order dated 29.01.2020 as well as on the state disbursement of funds made to the state governments. Vide order dated 29.01.2020, the Court directed the Union to consider, in terms of an Assessment Study on the Scheme of Establishment and Operationalization of Gram Nyayalayas, the proposal to increase the Recurrent Head to Rs.15 lakhs per annum by a minimum of 5 years with 50% Contribution from the State Government.

The matter was listed after 8 weeks.

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

(i) Those who accept that the 2008 Law should be applied;

(ii) Those who assert that the establishment of Gram Nyayalayas is optional and there is no mandate under the 2008 Act that must be established;

(iii) States in the Northeast, which claim to be exempt under the 2008 Law.

The Amicus stated that although 15 states/UTs had established or proposed to establish Gram Nyayalayas, 12 responded in the negative. He pointed out that the second category of states are basing their decision not to 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) says the following:

“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 each intermediate level Panchayat or group of Contiguous intermediate level Panchayats in a district or where there is no intermediate level Panchayat in any state, for a group of contiguous Gram Panchayats.”

The Amicus stated that the word ‘may’ was used in 63 places in the 2008 Act, however, in 8 places it is used in the sense of options that were given. With specific reference to Section 3, he said that the word ‘may’ is used in the context of the option of establishing Gram Nyayalayas (i) for each intermediate level Panchayat, or (ii) for a group of contiguous intermediate level Panchayats in a district, or (iii) where there is no intermediate level Panchayat in any State, to a group of contiguous Gram Panchayats.

Further, he took the Court through the objects and reasons of the 2008 Act and stated that the Court can infer whether ‘may’ was intended to be mandatory or discretionary from the same. Subsequently, he tried to convince the Court that the 2008 Law has great potential to unclog the First Instance Courts in the short term and the Superior Courts in the medium term.

“There will be no overlap… all issues that will be covered by this Act will be eliminated and therefore the High Courts will be immediately unobstructed. Of course the ripple effect to the High Court will occur a little later…but This unblocking will happen now.”

At this point, Justice Viswanathan observed that if access to justice is fundamental, then the use of the word “may” is just a form of expression. The Legislature, in a polite way, sometimes uses the word ‘may’, but it is necessary to look at fundamental rights, the guiding principles of state policy and the purpose intended to be achieved by the Law, said the judge.

Moving forward, the Amicus compared the jurisdiction and nature of the Gram Nyayalayas with that of the Gram Panchayats/Kachehris. He urged that the latter are not exempt from political influence, are not presided over by judicially trained minds, have a restricted scope of jurisdiction and may also be divided along caste, racial or other communal lines.

Justice Mishra, pointing to the existence of intermediate-level courts, raised doubts about the need for creation 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 the jurisdiction is here or there… Article 226 petitions will reach the High Courts in all cases (clogging them up).”

The judge further investigated who presides over the Gram Nyayalayas – regular cadre of judicial officers or separately trained officers – and whether there are separate rules of service for them. When told that the presiding officers are judicial officers, and a lawyer appearing in Kerala raised a demand for additional funds for the expansion of the Gram Nyayalayas, the judge commented:

“Governments are not providing infrastructure to regular courts… now they are looking for additional funds for these courts… Courts are operating in private accommodation, rented buildings… they are at 10 by 10, or 8 for 10 rooms..even for regular courts and high courts, Kerala government says ‘postponed until better times’…”.

“Some places are in warehouses,” added Minister Gavai.

Justice Mishra further referred to the statistics recorded about Karnataka, to note that in 4 years, Mandika Gram Panchayat was called upon to decide only 116 cases (48 resolved and remaining pending). “A First Class Judicial Magistrate, receiving salary of (…), dealing with just 116 cases in 4 years…and our regular judicial officers deal with thousands of cases…you have to see the other side too” , said the judge.

Justice Gavai added that the establishment of Gram Nyayalayas will have to be state specific depending on the need. “In Maharashtra, there is a court at each intermediate panchayat level. Therefore, this prima facie decision must be taken by the chief judges and chief ministers of each State,” the judge opined.

In the same vein, Justice Viswanathan observed that establishment of Gram Nyayalayas can be “mandatory but based on need”.

Senior Lawyer Huzefa Ahmadiappearing before the Himachal Pradesh High Court, alleged that on the last date, the Court sought a response from the government of Himachal Pradesh as it is not establishing Gram Nyayalayas despite repeated reminders from the High Court. In response, the Advocate General of HP stated that talks with the High Court are ongoing as he suggested setting up 2 Gram Nyayalayas in Shimla district but it would be difficult for litigants to reach there.

Case Title: NATIONAL FEDERATION OF RAPID JUSTICE SOCIETIES AND ANR. Versus UNION OF INDIA AND ORS., WP(C) No. 1067/2019