The village courts system has a number of strengths that form a solid foundation on

which future improvements can be made. These strengths, as described in the Village
Courts Policy 2001 and reproduced here, include:

q Adaptability.
Village courts are local courts in the true sense, constituted by local people for local
people. Thus, they have the capacity to adapt to the needs of the community they serve.
q Endurance.
Many village courts are still operating despite limited government support.
q Accessibility.
Village Courts are local, relatively cost free and open to all members of the community.
Matters can be heard without delay. People do not have to wait long periods of time for
hearings. Hearings are conducted within the local community. This usually means
people are not required to travel great distances or indeed leave their village.
q Custom.
They use custom to resolve disputes. In the village court, customary law has precedence
over all other law except the Constitution. The people accept and respect customary law
as a means to settle disputes.
q Language.
There is no language barrier. As a rule all those in a dispute speak a common language.
q Non-adversarial.
The courts are not restricted by the rules of evidence. The court can seek evidence from
any source that it considers useful. Mediation is the preferred mode of resolving
disputes.
q Personnel.
There is respect for the tribunal. The magistrates are selected from the local community
on the basis of their knowledge of custom, respect and fairness. There are many effective
village court officers in provinces. Village court officials have a community interest in the
success of their court.
q Support.
All levels of government support the courts.

While the village court system is poor in financial terms it is rich in human resources.
The abiding endorsement it receives from all levels of society provides a strong
platform on which to improve its functionality. It provides a community service where
the formal court system cannot and does not reach. Court officials are committed and
enthusiastic and have demonstrated the capacity to respond quickly to training and
guidance. It could be said, the village courts system is very much alive but in need of a
sustaining tonic.

Current Village Courts Issues Discussion

We use this discussion to record suggestions about the requirements for the village courts
project. This area acts as an open forum on topics such as what should or shouldn't be
included in the design. It also allows participants to engage in a public dialog regarding
the merits of various requests for enhancements. Anyone is welcome to submit
suggestions.

Village Courts operate in over 80% of Papua New Guinea and provide an inexpensive,
readily available means by which ordinary people can seek justice. It is estimated that
13,000 officials conduct 1,100 Village Courts, hearing about half a million cases every
year. They operate under the Village Courts Act 1989 (passed in 1974) and the principal
purpose is to maintain harmony within the community through mediation and application
of customary law. A significant impact has been the Organic Law on Provincial and Local
Level governments 1995 which shifted some responsibility from the national to
provincial governments.

The Court meets in public session at least twice a month. The first Wednesday of
the month is generally confined to arraignments.

The Village Court is one of the over 1,400 courts in the State of New York and dates
back to 1927, when the Village was incorporated.

The positions of Village Justice and Associate Village Justice were established under
the provisions of Village law Section 3-301(29(a.) The Village Justice is elected for 4
year term and must be a resident of the Village. The Associate Justice is appointed
annually and may reside outside of the Village. The Village Justice is responsible
for the administration of the Village Justice Court. The Village Justice is
responsible for establishing court hours and is authorized to solemnize marriages.
He may also administer oaths within his/her jurisdiction. All Village justices must
complete mandatory training by the Office of Court Administration. The Village
Justice is not required to be admitted to practice law in the State of New York, but if
he/she is not additional training is required. The primary function of the Village
Court is to adjudicate violations of the Village Code and local laws in addition to
traffic infractions.

New Delhi, Jan 17 (IANS) Law Minister H.R. Bhardwaj Saturday said around 3,000
village courts will start functioning within a month, meeting the United Progressive
Alliance government’s promise to take the justice delivery system to the doorsteps of
people in remote villages across the country. The minister made the announcement in his
inaugural address to a conference on ‘Need for Strengthening Alternate Dispute
Resolution in India’, organised by Associated Chambers of Commerce and Industry here.

“The government has decided to create 3,000 Gram Nyayalayas (village courts) shortly
across the country to decentralize dispensation of justice,” Bhardwaj said, adding that the
finance ministry has already agreed to release Rs.6 billion for the purpose.

Bhardwaj said his ministry has convened a meeting of chief justices of all high courts and
top bureaucrats of the states here Feb 2 to start the process of opening up village courts
across the country.
“The village courts will start functioning latest within a month’s time at a cost of Rs.2
million each allocated from the central pool,” he said.

Bhardwaj said that for the first three years, half of the salaries of judges in village courts
and other employees will be paid by central allocations.

“Thereafter, it would be responsibility of the states concerned to bear the burden of

capital cost of such courts,” he said.

The minister said the opening of village courts is part of the UPA government’s effort to
bring down the backlog of cases in various courts, including in the Supreme Court where
it has crossed the 48,000 mark.

High courts across the country have a backlog of 3.8 million cases more, while the lower
courts across the country have a backlog of over 25 million cases, he added.

The minister also said that his ministry has also finalized a draft document to initiate
amendments in existing arbitration procedures which encourage litigation rather than
sorting out disputes.

Touching the issues of the existing economic recession, Bhardwaj said that the
government will beat it the best way at its command and announce bail out packages as
required for stressed sectors to take them out of current recession.

“The prime minister is more than concerned about it and has been discussing this at every
cabinet meeting with his colleagues in the government,” he said.

Rwanda launches village courts

Thousands have spent eight years in jail awaiting trial

A new court system has been launched in Rwanda, designed to clear the huge
backlog of cases resulting from the genocide eight years ago.

Speaking at a ceremony to mark the launch, Rwandan President Paul Kagame said
the success of the system depended on the participation of ordinary people.
Under the quick justice of the gacaca system, suspects in the killing of up to one
million people in 100 days in 1994 will be taken back to where it is said they
committed their crimes and tried by a panel of judges chosen by local people.

President Paul Kagame said the gacaca courts would not be perfect but were critical
to the future of the country.
Gacaca courts

"If we all rise up and support that gacaca process we will have 250,000 new judges
11,000 jurisdictions
shown our love for our country and our fellow Rwandans," he 115,000 defendants
May impose life sentences
said.

"Reconciliatory justice will be the basis for unity and the foundation for progress."

Several thousand people have gone on trial for their alleged roles in the slaughter of
Tutsis and Hutus, but around 115,000 still await justice,
sitting in overcrowded jails.

Gacaca - meaning grass - courts were traditionally used by

village communities who would gather on a patch of grass to
resolve conflicts between two families, employing the heads
of each household as judges.

Under the new system, judges elected from all parts of

society last October will sit in panels of 19.

The courts will be allowed to acquit defendants or pass

sentences up to life imprisonment. Up to a million people were
killed in 100 days of slaughter

The system allows courts to lessen sentences for those who confess to their crimes
and jail terms can be halved if convicts agree to do community service.

Thus, a suspect who admits to killing one or two people, for example, and who
admits to his crimes, can go home to do community service after six years in jail.

Thousands of people have already spent eight years behind bars on remand; so
many prisoners found guilty of murder will be freed after their gacaca trials.

'Crucial experiment'

The government hopes that the testimony given by witnesses as to who killed, where
and when will lay bare the truth about the genocide and thus help the Rwandan
people on their long road to recovery.

Posters reading "The truth heals" are announcing the courts, which will start work
next week.

Some Rwandans are welcoming the gacaca courts as a way for people to get out of
prison and return to their families but others are angry that justice will not have
been done and fear reprisals if alleged murderers are taken back to the scene of the
crime.
The government acknowledges that Gacaca isn't perfect, but it argues there was no
alternative.

At the current rate of conventional court proceedings it would take a hundred years
to clear the backlog of cases.

Plan to set up 5,000 village courts

Our Bureau

Mangalore, Oct. 13 the Central Government is planning to set up village courts to dispose
of the cases in subordinate courts, according to Mr M. Veerappa Moily, Union Minister
for Law and Justice.

Speaking to presspersons on the sidelines of a function at the University College in

Mangalore on Tuesday, Mr Moily said the Centre is planning to set up 5,000 village
courts in four-and-half years.

He said that around 2.7 crore cases are pending in the subordinate courts.

Disposal of cases

When all the 5,000 courts are established, there will be a big revolution in disposal of
cases in subordinate courts. The establishment of village courts will bring down the
pending cases in subordinate courts drastically, he said.

Madhya Pradesh has already started such courts. He said the Government is also holding
a national consultation on judicial reforms, particularly with regard to disposal of cases.
The consultation will be held in Delhi on October 24-25.

Fast-track mode

To dispose of the high-value cases on fast-track mode, the Government is planning to set
up commercial courts in High Courts. The Bill on Commercial Court will go to the
Cabinet for approval.

The Bill will be placed before Parliament during the winter session, he said.

Earlier, Mr Moily inaugurated the new block of University College. The old students’
association of the college has constructed the building. Mr Moily said that Mangalore
Refinery and Petrochemicals Ltd have agreed to fund Rs 50 lakh for the construction of
an auditorium in the new block.
VILLAGE level traditional juridical mechanism named 'shalish' is active in rural
Bangladesh from time immemorial. An informal justice mechanism, Shalish is: 'basically
a practice of gathering village elders and concerned parties, exclusively male, for the
resolution of local disputes. Sometimes Chairmen and elite members of the Union
Parishad are invited to sit through the proceedings. Shalish has no fixed dimension and its
size and structure depend entirely on the nature and gravity of the problem at hand
(Sumaiya Khair: 2001).'

While the above description may suggest that a shalish is a 'calm deliberation, with the
parties patiently putting forth their perspectives and impartial facilitators soberly sorting
through the issues' but actual shalish is of peculiar character. Stephen Gloub describes his
impression flowing from the observations of over a dozen shalish sessions during the
1990s as follows:

'The actual shalish is often a loud and passionate event in which disputants, relatives,
(shalish panel) members and even uninvited community members congregate to express
their thoughts and feelings. Additional observers adults and children alike gather in the
room's doorway and outside. More than one exchange of opinions may occur
simultaneously. Calm discussions explode into bursts of shouting and even laughter or
tears. All of this typically takes place in a crowded school room or other public space,
sweltering most of the year, often with the noise of other community activities filtering in
from outside. The number of participants and observers may range from a few dozen to
well over one hundred (Stephen Gloub:
2003).'

However, shalish mechanism as a justice

forum has some specific characteristics. It
is a completely informal mechanism which
has no specie procedure to follow. The
adjudicators (shalishkar) of a shalish do
not have any legal authority, but they get
social authority from their seniority,
wisdom, economic and religious status or
by way of village politics. For delivering
justice, shalish mechanism uses no
specific law but the notion of justice
emanated from religious guidance and sense of social wellbeing.

A shalish may involve voluntary submission to arbitration (which, in this context,

involves the parties agreeing to submit to the judgment of the shalish panel), or mediation
(in which the panel helps the disputants to try to devise a settlement themselves) or a
blend of the two. 'Shalish addresses almost all type of disputes- civil, criminal or family.
These often involve gender and family issues, such as violence against women whether
within or outside marriage, inheritance, dowry, polygamy, divorce, maintenance for a
wife and children, or a combination of such issues. Other foci include land conflicts as
well as other property disputes (Stephen Gloub: 2003).
The purpose of Shalish is to dispose off different type of local disputes locally, speedily
and amicably without resorting to formal expensive and lengthy court procedures. While
it is undeniable that shalish has been successful 'in some measure at providing acceptable
judgments and solutions (Fazlul Haq: 1998)', it is also a bare truth that this purpose of the
shalish mechanism has been frustrated time and again due to various socio-economic and
religious grounds.

In the absence of specified law, process and accountability, the forum has been a vehicle
for imposing subjective notion of justice by the socially, economically or religiously
powerful people. While socially and economically powerful people have got this forum
as a platform for enforcing their dominance over disadvantaged portion of the society, the
religious leaders have used this forum as an instrument for practicing their religious
dogmas.

These malpractices or biases in the shalish system are broadly categorized as class-based
and gender-based. One the one hand, the powerful portion of the society have supported
their class against disadvantaged group, on the other hand the patriarchal society,
sometimes with the assistance of the religious leaders, has uphold their patriarchal notion
of justice. The statement gets support from the following paragraphs.

'Although shalish members have the option of engaging in either mediation or arbitration
to reach a solution, most commonly choose arbitration. This method involves unilateral
decisions made by officiating members, whereas mediation engages opposing parties in
reaching solutions of mutual satisfaction…Although the decisions are not always fair and
equitable, they tend to carry a great weight within the community because they are issued
by well-known and powerful villagers...'

Sometimes solutions are arbitrary and imposed on reluctant disputants by powerful

village or community members. Such “solutions” are based less on civil or other law than
on subjective judgments designed to ensure the continuity of their leadership, to
strengthen their relational alliances, or to uphold the perceived cultural norms and biases.
The shalish also is susceptible to manipulation by corrupt touts and local musclemen who
may be hired to guide the pace and direction of he process by intimidation. Furthermore,
because the traditional shalish is composed exclusively of male members, women are
particularly vulnerable to extreme judgments and harsh penalties (Sumaiya Khair: 2002).'

Against this backdrop, Village Court are created in 1976 with the objectives that poor
village shall get easy access to justice without any cost, they can be freed from accepting
unwanted decision given by the dominant or elite classes of village in the name of justice
and disputant parties can be able to solve their problems by themselves with a little or
necessary assistance from these dispute resolution forums.

It is mentionable that the Village Courts are statutory courts and are composed of with
local government (Union Parishad) representatives (as community leaders) and members
from disputant parties. But these courts are legally required to follow informal procedure
of trial or dispute settlement, meaning thereby that the application of Code of Civil
Procedure, Code of Criminal Procedure and Evidence Act has been barred. Also is barred
the appointment of lawyers. The underlying argument is that the disputant parties will be
able to discuss all their problems without any reservation or hesitation and can take an
amicable and justifiable decision. However, decisions of these courts are as binding as
those of any other formal courts of the country. In a word, both these forums are
examples of accommodation of formal courts and traditional knowledge and wisdom.

Noticeably, though a long time has passed after introducing this village justice
mechanism, the government of the country has not undertaken any research to assess the
performance of the judicial institution, or to assess whether the institution is being able to
fulfill the aims they were introduced to meet. However, some non-government
organizations and some private individuals in the recent years have conducted some small
scale researches on the village courts that show that the performance of the arbitration
council and village courts is very poor and unsatisfactory.

Though this Union Parishad administered dispute resolution forum does 'not impose the
fatwas and harsh punishments that the extreme forms of the traditional practice entail',
often 'the reality of village courts does not differ substantially from that presented by the
traditional process.' A number of sources suggest that the dynamic and the membership of
the Village Courts often resemble the traditional form of shalish in terms of being either
biased or ineffective at providing justice for the disadvantaged, including women
(Stephen Gloub: 3003).

In the like manner, a Bangladesh Ministry of Women's and Children's Affairs paper
quotes the head of a local social service NGO as saying that dispute settlement by Union
Parishad members 'ignore the rights of (sexually abused) women and girls and either
dismiss the case or award them money as compensation.' As an Asia Foundation report
suggests: 'UP Chairmen, who are often overwhelmed with many disparate responsibilities
and little governmental support, tend to view family disputes and other violations of law
as low priorities. Many UP Chairmen and members are also ill-informed in the law, and
some are reportedly corrupt and politically motivated, causing them to act with prejudice
(Sumaiya Khair: 2002).'

In this way, various research literatures reveal that the Village Court, a state-led rural
justice institution, has not succeeded to be adequately reliable judicial forum for
vulnerable rural communities. Still traditional shalish are rampant, perpetuating the
regimes of impoverishment. Hopefully, some NGOs have been supporting local dispute
resolution as an alternative forum of state-led and traditional forums of rural justice.
These NGOs supported programmes run by knowledgeable law officers and well-
prepared documents have been seeing the light of success gradually. But these NGOs
legal aid activities cover hardly 1% of around 70,000 Bangladeshi villages. According to
a UNDP report, two third of the disputes do not enter the formal court process. So still
two-third disputes are disposed off in traditional Shalish, Village Courts, Arbitration
Council or they remain unsettled.
When these traditional shalish system as well as semi-formal judicial bodies like village
courts and arbitration councils are failing to give substantive justice, the socio-economic
conditions of majority of the Bangladesh village people and lengthy process of the formal
courts are preventing them to move to the formal judicial system.

The outcome is that vast majority of the people of the country is still out side the net of
'access' to justice, let alone access to 'justice'. However, a simple reading of the Village
Court Ordinance implies that almost all major aspects of an effective justice system have
been addressed in the law. A proper implementation of the law could improve the state of
'access' to justice dramatically. But that did not happen. Then why the mechanism is not
working effectively is a question to be researched. Though there have been some
researches on it, I think those researches are not adequate to address the issue properly. It
is time government undertook an in-depth study, not a fly-in-fly-out study, to dig out the
problems of the rural justice system and address those problems without delay.

It will lead to katta panchayat (kangaroo courts)”

“It will facilitate political interference”

MADURAI: Lawyers practising in the Madras High Court Bench here boycotted court
proceedings on Thursday opposing the proposed establishment of over 5,000 village
courts across the country under the Gram Nyayalayas Act, 2008.

The Bar Associations felt that institution of new courts would not be of any use unless the
Central and State governments took steps to fill vacancies of judicial officers as well as
ministerial staffers, besides providing necessary infrastructure.

M. Subash Babu, president of the Madurai Bench High Court Advocates Association
(MHAA), said that encouraging village courts to settle disputes through conciliation
would only lead to ‘katta panchayat’ (kangaroo courts).

Referring to Section 27 of the Gram Nyayalayas Act which permits appointment of social
workers as conciliators, he said: “It would facilitate political interference as it was
happening in the case of appointing members to consumer courts.”

“We are not against courts going to the villages. But it should not result in a situation
where the judiciary would go into the hands of politicians. We feel that people with legal
knowledge alone are competent to hold such posts,” he said.

Concurring with him, M. Ajmal Khan, former president of MHAA, opined that the State
Government had already established adequate number of courts at the taluk level. The
lacuna was only in equipping these courts with infrastructure.
 Situation now

“Earlier, there was only one District Munsif court in Periyakulam for the
entire Theni district. Now we have a Munsif court in all five taluks of
the district. When such is the situation where is the necessity for
establishing village courts?” he asked.

Mr. Khan also said that the Centre could have circulated the draft Bill,
before passing the enactment, to all Bar Associations in the country
and considered their views. “The legal community should have been
taken into confidence,” he said.

The Act states that village courts would provide access to justice to
citizens at their doorstep and ensure that opportunities for securing
justice were not denied to any citizen by reasons of social, economic or
other disabilities.

Section 6 stipulates that only a person qualified to be appointed as a

Judicial Magistrate of first class should be appointed as the presiding
officer of the village court. The officer should deliver judgements
within 15 days of conclusion of trial in criminal cases and within six
months of institution of civil suits.

Apart from our concentration on corruption in Judiciary, we have been concentrating on

delay in justice delivery too. This time, it appears that we are serious at the delay in
justice delivery. When it comes to pendency of litigation before various courts in the
country and the delay, we often point at lack of infrastructure and filling the vacancies. To
address the issue of infrastructure matching our population, we have been mooting
constitution of village courts in close co-ordination and co-operation with all State
Governments. I do believe that constitution of Village Courts and coming to a conclusion
on its functioning consumes lot of time and it requires good amount of public spending
too. While it is laudable to look at the seriousness with which the issue of delay in justice
delivery is dealwith this time, I believe that the constitution of village courts may not
solve the problem or even may not reduce the delay. I believe that we may have to
witness many more other problems if this concept of Village Courts is given effect to.

I don't think that the issue of delay in justice delivery can be addressed in a year or two
and I believe that it will take longer time and it can be achieved only with proper
planning. Before going to look at the issue of usefulness of constitution of Village Courts,
I would like to mention certain issues which cause delay in justice delivery. The issues
are like:

1. At times, the presiding officers are not able to even read the case with patience and
speed and understand the case. This point at lack of quality in judicial officers. I have
seen where the people laugh at the way in which the proceedings are conducted in courts.
I have seen many cases. So, we need to concentrate on the issue of judicial officer
appointments and there should not be any compromise with quality and performance in
this regard.

2. Some cases, the judges had to read all the papers on their own and had to get the
needed information through probing while adjudicating a case. This happens, despite the
presence of lawyers and I have seen many such cases. What happens is that, when a
judge had to read all the papers on his own and lawyers don’t offer the required
assistance, then, it consumes lot of valuable time in the course and it causes delay. This
point at lack of standards in the profession. We need to address this issue and at least we
must be able to restore the standards in legal profession within some 10 to 20 years. The
lost dignity of judiciary as a result of lack of standards can be achieved again only with
proper plan and it certainly consumes lot of time. But, there is no issue except to address
this.

3. The other important issue is about the delay tactics. When there is no good case for a
party, then the lawyer tries to drag the matter in one way or other. The known route to
drag a case is to file as many applications as he can and preferring appeals on each and
every order passed in those applications. Its a dangerous trend. The judicial officers
should be well trained as to how to avoid the delay tactics. They must pass reasoned
orders whenever they feel that the delay tactics are being played and the appellate courts
should be very cautious while entertaining applications on interim orders.

Though, there are many issues to dealwith when we look at the issue of delay in justice
delivery, I strongly feel that we need to address the above three issues first. I feel that the
inefficient judicial officer is more harmful to the society than a corrupt judicial officer.

The orderliness in the society will get disturbed if we don't establish an efficient and
trustworthy legal system. We must have a legal mechanism where the grievances of
public are redressed in least possible time. Again, the delay in justice delivery will have
an impact on our economic growth too. Our industry too is a victim of this delay. What
happens if a case between two companies is pending for a long time? It affects the growth
of those two companies or at least one company. It is happening and we are seeing all this
cases. Apart from the issues like quality and infrastructure, we have established in
Alternative Dispute Redressel Mechanism like Arbitration through Arbitration and
Conciliation Act, 1996. The Arbitration exercise is very costly. I have seen an Arbitration
Claim where the claim is some 1 crore and I know that the parties have collectively spent
some 50 lacks on expenses and the case is still pending before the Arbitrator. We are
seeing these things. Only, an efficient legal system will address all the issues connected to
people and the commercial world.

When we examine the issue of constitution of Village Courts, I don't think that the
purpose will be solved with that. Because, we are not addressing the issue of quality and
even then trying to by-pass the established civil procedure. Many may criticize the Civil
Procedure Code, but, I do strongly feel that it is one of the finest laws we have. There is
so much logic behind each and every provision. I think that it is not right to criticize our
established procedures intoto for the delay in justice delivery. In implementation of laws,
we are failing and its true.

In the course of establishing this Village Courts, our state machinery will be spending its
valuable time and also public money. When the public raise the issue of delay in justice
delivery, the state machinery will say for sometime that the steps are being taken like
establishment of Village Courts and ultimately if it doesn't work, then, the public should
suffer. I know that the great intellectuals like Dr.Jayaprakash Narayan of loksattaparty are
also supporting the constitution of Village Courts to solve the issue of delay. But, I
disagree with them. We can point out so many issues and can establish that the Village
Courts may not be a solution to the delay in justice delivery.

The judicial reforms are a serious issue in India and unless we establish an efficient and
trustworthy judicial system, we can never claim that we are developed.

The Village Court: a neglected but potential rural justice forum

Abstract

The Village Courts in Bangladesh are established in 1976 with the objectives that poor
village shall get easy access to justice without any cost, they can be freed from accepting
unwanted decision given by the dominant or elite classes of village in the name of justice
and disputant parties can be able to solve their problems by themselves with a little or
necessary assistance from these dispute resolution forums. But the village courts have
failed to achieve the objectives. This article examines the causes of the failure and finds
that still there are great potentials in the village courts to be successful rural justice
forums.

The Village Court: a neglected but potential rural justice forum

Zahidul Islam Biswas

VILLAGE level traditional juridical mechanism named 'shalish' is active in

rural Bangladesh from time immemorial. An informal justice mechanism,

Shalish is: 'basically a practice of gathering village elders and concerned

parties, exclusively male, for the resolution of local disputes. Sometimes

Chairmen and elite members of the Union Parishad are invited to sit through

the proceedings. Shalish has no fixed dimension and its size and structure

depend entirely on the nature and gravity of the problem at hand (Sumaiya
Khair: 2001).'

While the above description may suggest that a shalish is a 'calm deliberation,

with the parties patiently putting forth their perspectives and impartial

facilitators soberly sorting through the issues' but actual shalish is of peculiar

character. Stephen Gloub describes his impression flowing from the

observations of over a dozen shalish sessions during the 1990s as follows:

'The actual shalish is often a loud and passionate event in which disputants,

relatives, (shalish panel) members and even uninvited community members

congregate to express their thoughts and feelings. Additional observers adults

and children alike gather in the room's doorway and outside. More than one

exchange of opinions may occur simultaneously. Calm discussions explode

into bursts of shouting and even laughter or tears. All of this typically takes

place in a crowded school room or other public space, sweltering most of the

year, often with the noise of other community activities filtering in from

outside. The number of participants and observers may range from a few

dozen to well over one hundred (Stephen Gloub: 2003).'

However, shalish mechanism as a justice forum has some specific

characteristics. It is a completely informal mechanism which has no specie

procedure to follow. The adjudicators (shalishkar) of a shalish do not have any

legal authority, but they get social authority from their seniority, wisdom,

economic and religious status or by way of village politics. For delivering

justice, shalish mechanism uses no specific law but the notion of justice

emanated from religious guidance and sense of social wellbeing.

A shalish may involve voluntary submission to arbitration (which, in this

context, involves the parties agreeing to submit to the judgment of the shalish

panel), or mediation (in which the panel helps the disputants to try to devise a

settlement themselves) or a blend of the two. 'Shalish addresses almost all type

of disputes- civil, criminal or family. These often involve gender and family

issues, such as violence against women whether within or outside marriage,

inheritance, dowry, polygamy, divorce, maintenance for a wife and children,

or a combination of such issues. Other foci include land conflicts as well as

other property disputes (Stephen Gloub: 2003).

The purpose of Shalish is to dispose off different type of local disputes locally,

speedily and amicably without resorting to formal expensive and lengthy court

procedures. While it is undeniable that shalish has been successful 'in some

measure at providing acceptable judgments and solutions (Fazlul Haq: 1998)',

it is also a bare truth that this purpose of the shalish mechanism has been

frustrated time and again due to various socio-economic and religious

grounds.

In the absence of specified law, process and accountability, the forum has been

a vehicle for imposing subjective notion of justice by the socially,

economically or religiously powerful people. While socially and economically

powerful people have got this forum as a platform for enforcing their

dominance over disadvantaged portion of the society, the religious leaders

have used this forum as an instrument for practicing their religious dogmas.
These malpractices or biases in the shalish system are broadly categorized as

class-based and gender-based. One the one hand, the powerful portion of the

society have supported their class against disadvantaged group, on the other

hand the patriarchal society, sometimes with the assistance of the religious

leaders, has uphold their patriarchal notion of justice. The statement gets

support from the following paragraphs.

'Although shalish members have the option of engaging in either mediation or

arbitration to reach a solution, most commonly choose arbitration. This

method involves unilateral decisions made by officiating members, whereas

mediation engages opposing parties in reaching solutions of mutual

satisfaction…Although the decisions are not always fair and equitable, they

tend to carry a great weight within the community because they are issued by

well-known and powerful villagers...'

Sometimes solutions are arbitrary and imposed on reluctant disputants by

powerful village or community members. Such “solutions” are based less on

civil or other law than on subjective judgments designed to ensure the

continuity of their leadership, to strengthen their relational alliances, or to

uphold the perceived cultural norms and biases. The shalish also is susceptible

to manipulation by corrupt touts and local musclemen who may be hired to

guide the pace and direction of he process by intimidation. Furthermore,

because the traditional shalish is composed exclusively of male members,

women are particularly vulnerable to extreme judgments and harsh penalties

(Sumaiya Khair: 2002).'

Against this backdrop, Village Court are created in 1976 with the objectives

that poor village shall get easy access to justice without any cost, they can be

freed from accepting unwanted decision given by the dominant or elite classes

of village in the name of justice and disputant parties can be able to solve their

problems by themselves with a little or necessary assistance from these dispute

resolution forums.

It is mentionable that the Village Courts are statutory courts and are composed

of with local government (Union Parishad) representatives (as community

leaders) and members from disputant parties. But these courts are legally

required to follow informal procedure of trial or dispute settlement, meaning

thereby that the application of Code of Civil Procedure, Code of Criminal

Procedure and Evidence Act has been barred. Also is barred the appointment

of lawyers. The underlying argument is that the disputant parties will be able

to discuss all their problems without any reservation or hesitation and can take

an amicable and justifiable decision. However, decisions of these courts are as

binding as those of any other formal courts of the country. In a word, both

these forums are examples of accommodation of formal courts and traditional

knowledge and wisdom.

Noticeably, though a long time has passed after introducing this village justice

mechanism, the government of the country has not undertaken any research to

assess the performance of the judicial institution, or to assess whether the

institution is being able to fulfil the aims they were introduced to meet.

However, some non-government organizations and some private individuals in

the recent years have conducted some small scale researches on the village

courts that show that the performance of the arbitration council and village

courts is very poor and unsatisfactory.

Though this Union Parishad administered dispute resolution forum does 'not

impose the fatwas and harsh punishments that the extreme forms of the

traditional practice entail', often 'the reality of village courts does not differ

substantially from that presented by the traditional process.' A number of sources suggest
that the dynamic and the membership of the Village Courts

often resemble the traditional form of shalish in terms of being either biased or

ineffective at providing justice for the disadvantaged, including women

(Stephen Gloub: 3003).

In the like manner, a Bangladesh Ministry of Women's and Children's Affairs

paper quotes the head of a local social service NGO as saying that dispute

settlement by Union Parishad members 'ignore the rights of (sexually abused)

women and girls and either dismiss the case or award them money as

compensation.' As an Asia Foundation report suggests: 'UP Chairmen, who are

often overwhelmed with many disparate responsibilities and little

governmental support, tend to view family disputes and other violations of law

as low priorities. Many UP Chairmen and members are also ill-informed in the

law, and some are reportedly corrupt and politically motivated, causing them

to act with prejudice (Sumaiya Khair: 2002).'

In this way, various research literatures reveal that the Village Court, a stateled

rural justice institution, has not succeeded to be adequately reliable judicial

forum for vulnerable rural communities. Still traditional shalish are rampant,
perpetuating the regimes of impoverishment. Hopefully, some NGOs have

been supporting local dispute resolution as an alternative forum of state-led

and traditional forums of rural justice. These NGOs supported programmes

run by knowledgeable law officers and well-prepared documents have been

seeing the light of success gradually. But these NGOs legal aid activities cover

hardly 1% of around 70,000 Bangladeshi villages. According to a UNDP

report, two third of the disputes do not enter the formal court process. So still

two-third disputes are disposed off in traditional Shalish, Village Courts,

Arbitration Council or they remain unsettled.

When these traditional shalish system as well as semi-formal judicial bodies

like village courts and arbitration councils are failing to give substantive

justice, the socio-economic conditions of majority of the Bangladesh village

people and lengthy process of the formal courts are preventing them to move

to the formal judicial system.

The outcome is that vast majority of the people of the country is still out side

the net of 'access' to justice, let alone access to 'justice'. However, a simple

reading of the Village Court Ordinance implies that almost all major aspects of

an effective justice system have been addressed in the law. A proper

implementation of the law could improve the state of 'access' to justice

dramatically. But that did not happen. Then why the mechanism is not

working effectively is a question to be researched. Though there have been

some researches on it, I think those researches are not adequate to address the

issue properly. It is time government undertook an in-depth study, not a fly-infly-

out study, to dig out the problems of the rural justice system and address

those problems without delay.

Village courts planned

6,000 village level courts are planned across the country. To be known as Gram
Nyayalayas, these will handle both criminal and civil disputes. They will adopt
a shortened procedure with full safeguards for natural justice. The Centre will
fund the creation of courts and share the recurring costs with the States. A Bill
to formalise this will soon be introduced in the Parliament.

The crowds of villagers milling around District and Taluka courts will no
longer need to travel long distances and waste whole days or for that matter, be
entrapped by greedy lawyers.

The Gram Nyayalaya Bill, recently introduced in Parliament, aims at

establishing rural courts at village level to clear the backlog of cases and
provide a forum for settlement of disputes with simplified procedure to make
justice accessible to the common man.

The House panel had recommended setting up of mobile courts to ensure justice
at the doorstep, plea-bargaining to clear backlog of cases in rural areas and
inclusion of revenue matters in the jurisdiction of these courts as revenue
disputes in rural areas comprise a bulk of cases.

“The Gram Nyayalayas will be established in addition to other courts and will
act as the subordinate court at intermediate panchayat level. These courts will
be empowered to deal with both criminal and civil cases.

The Central Government will bear all non-recurring expenditure for setting up
these courts and will bear half of the recurring expenditure for three years after
their establishment,” the ministry said.

Kerala has had many firsts. Now a village in Kerala gets India's first village
court and establishes itself as the first 'litigation-free' area in the country.
The Cheriyanad grama panchayat in Alappuzha district has been declared the
country's first "litigation-free and legal-literate" area by the Chief Justice of
India

KG Balakrishnan.

Lawyer Eby Kuriyakose says, “The people in the village are living in average
and below average condition. In that condition this panchayat introduces an
out-of-court settlement, that is called panchayat court, also they participate in
the lokayuth."

The village court was started in January 1988. Today the court comprises a
legal expert, a college lecturer, a social worker and two standing members of
the the panchayat. About 160 cases were settled in the first two years itself.

V K Vasudevan who holds the post of Panchayat President of Cheriyanadu says

the village court was able to win the trust of the people.
Vasudevan says, "Cases which were pending in various courts for more than 25
years were settled through the mutual interaction of the parties in a healthy
atmosphere."
Above all, the village court was successful because the employees and the
panchayat members acted above politics.

Chief Justice of India K.G. Balakrishnan on Saturday said the Kerala

government’s response to moves to start new courts had not been reassuring.

He was addressing the valedictory function of the 125th anniversary

celebrations of the Irinjalakuda Courts.

“For several years, we have been demanding new courts for Kerala. I hope the
State government will take a positive step in this direction.”

He said that 150 courts would be started in the State. “With the institution of a
court for every four or five villages and an increase in the number of district
courts, the judicial system in the State will be more effective. Gramin
nyayalayas (village courts) will change the judicial scene. Each will function
like the unit of a civil judge junior division having the powers of a munsiff. Not
all powers are being conferred to these courts. After assessing the number and
nature of cases to be tried in these courts, they can be conferred more powers.”

The Chief Justice of India observed that courts in many parts of the country
could not hold a candle to those in Kerala. “In Kerala, the judicial system is
faultless and sacrosanct, the kind of which is not seen elsewhere. Officers work
efficiently. An increase in the number of cases being filed shows that people are
not excluded from the judicial system. Reports in a section of the media that 37
cases related to family relations reach the Kerala courts every day indicate that
the judicial system is effective. Family courts try to protect the institution of
marriage, to solve problems between couples and re-unite them,” he said.

He said that judges in Kerala were forced to handle a huge number of cases
because there were few courts. “In a former Russian State, a judge handled 90
cases a month. In Kerala, a judge does 90 cases a day,” he added.

Call for alternative

Chief Justice of the Kerala High Court S.R. Bannurmath said that alternative
dispute redressal systems should be encouraged.

Kerala High Court judge Kurian Joseph said that only 0.49 per cent of the
annual State budget was being spent for development of judiciary. “As many as
412 courts function with only two-thirds of required staff. But the number of
cases has increased enormously over the years.”

High Court judges V. Ramkumar, P.Q. Barkat Ali, District and Sessions Judge
B. Kemal Pasha, P.C. Chacko, MP, Thomas Unniyadan, MLA, and K.R.
Achuthan, president, Bar Association, Irinjalakuda, were among those present
on the occasion.
The Panchayat is a South Asian political system mainly in India, Pakistan, and Nepal.
"Panchayat" literally means assembly (yat) of five (panch) wise and respected elders
chosen and accepted by the village community. Traditionally, these assemblies settled
disputes between individuals and villages. Modern Indian government has decentralised
several administrative functions to the village level, empowering elected gram
panchayats. Gram panchayats are not to be confused with the unelected khap panchayats
(or caste panchayats) found in some parts of India
The term ‘panchayat raj’ is relatively new, having originated during the British
administration. 'Raj' literally means governance or government. Mahatma Gandhi
advocated Panchayati Raj, a decentralized form of Government where each village is
responsible for its own affairs, as the foundation of India's political system. His term for
such a vision was "Gram Swaraj" (Village Self-governance).

It was adopted by state governments during the 1950s and 60s as laws were passed to
establish Panchayats in various states. It also found backing in the Indian Constitution,
with the 73rd amendment in 1992 to accommodate the idea. The Amendment Act of 1992
contains provision for devolution of powers and responsibilities to the panchayats to both
for preparation of plans for economic development and social justice and for
implementation in relation to twenty-nine subjects listed in the eleventh schedule of the
constitution.[2]

The panchayats receive funds from three sources – (i) local body grants, as recommended
by the Central Finance Commission, (ii) funds for implementation of centrally-sponsored
schemes, and (iii) funds released by the state governments on the recommendations of the
State Finance Commissions.[2]

In the history of Panchayati Raj in India, on 24 April 1993, the Constitutional (73rd
Amendment) Act, 1992 came into force to provide constitutional status to the Panchayati
Raj institutions. This Act was extended to Panchayats in the tribal areas of eight States,
namely Andhra Pradesh, Bihar, Gujarat, Himachal Pradesh, Maharashtra, Madhya
Pradesh, Orissa and Rajasthan from 24 December 1996. Now panchayati raj system
exists in all the states except Nagaland, Meghalaya and Mizoram. Also all the UTs except
Delhi.

The Act aims to provide 3-tier system of Panchayati Raj for all States having population
of over 2 million, to hold Panchayat elections regularly every 5 years, to provide
reservation of seats for Scheduled Castes, Scheduled Tribes and Women, to appoint State
Finance Commission to make recommendations as regards the financial powers of the
Panchayats and to constitute District Planning Committee to prepare draft development
plan for the district.

Powers and responsibilities are delegated to Panchayats at the appropriate level :-

 Preparation of plan for economic development and social justice.

 Implementation of schemes for economic development and social justice in
relation to 29 subjects given in Eleventh Schedule of the Constitution.
 To levy, collect and appropriate taxes, duties, tolls and fees.

Panchayati Raj is a system of governance in which gram panchayats are the basic units
of administration. It has 3 levels: village, block and district. At the village level, it is
called a Panchayat. It is a local body working for the good of the village. The number of
members usually ranges from 7 to 31; occasionally, groups are larger, but they never have
fewer than 7 members.
The block-level institution is called the Panchayat Samiti. The district-level institution is
called the Zilla Parishad.

Gram sabha

Gram sabha is constituted by all members of a village over the age of 18 years.The Gram
Sabha elects the Gram Panchayat a council of elected members taking decisions on issues
key to a village's social, cultural and economic life: thus, a Gram Panchayat is also a
village's body of elected representatives. The council leader is named Sarpanch in Hindi,
and each member is a Gram Panchayat Sadasya or Panch. The panchayat acts as a
conduit between the local government and the people. Decisions are taken by a majority
vote (Bahumat). It is said that in such a system, each villager can voice his opinion in the
governance of his village Decisions are taken without lengthy legal procedures and the
process remains for the most part transparent Panchayat is an ancient Indian word that
means means Five Persons ( Headman ). Since its inception, Panchayat has come a long
way, it is currently included in the constitution of the Government of India.

A CONFERENCE of state law ministers, secretaries and registrar generals of High

Courts is being held on February 1 at Vigyan Bhawan to deliberate on implementation
aspects of Gram Nyayalayas. To be presided over by Union Law Minister H R Bhardwaj,
the meet will discuss establishment of Gram Nyayalayas and related matters like
timeframe and financial arrangements to be made for such courts. The Gram Nyayalaya
Bill, Parliament, aims at establishing rural courts at village level to clear the backlog of
cases and provide a forum for settlement of disputes with simplified procedure to make
justice accessible to the common man.

“The Centre has already accepted most of the recommendations of the Parliamentary
Standing Committee on Gram Nyayalaya and will now pursue the Bill in Parliament for
its early enactment,” the Law Ministry said in a release on Thursday. The House panel
had recommended setting up of mobile courts to ensure justice at the doorstep, plea-
bargaining to clear backlog of cases in rural areas and inclusion of revenue matters in the
jurisdiction of these courts as revenue disputes in rural areas comprise a bulk of cases.

“The Gram Nyayalayas will be established in addition to other courts and will act as
the subordinate courts at intermediate panchayat level. These courts will be empowered
to deal with both criminal and civil cases. The Central Government will bear all
nonrecurring expenditure for setting up these courts and will bear half of the recurring
expenditure for three years after their establishment.” The ministry said.

Administrative reforms panel finds local bodies lack authority to recruit

staff
The second Administrative Reforms Commission (ARC) in its report on local governance
has expressed concern over the lack of power by the Panchayats in most states to “recruit
their own staff and determine their salaries, allowances and other conditions of service”.
The commission is of the view that Panchayats “as the government at the local level”
should have their own staff. The ARC report has noted that the Panchayats have to
depend on the officials of the state government for staff support. The report added,
“Running an organization with staff on deputation suffers from two major weaknesses.
First, frequent transfers do not allow development of a dedicated manpower. Secondly,
employees have to answer to two authorities. This duality of control is one of the major
obstacles in optimally coordinating the activities of various government functionaries in
the rural areas. The commission is of the view that panchayats as the government at the
local level should have their own staff. They should have full powers with regard to
recruitment and service conditions of their employees within a broad framework of State
laws and certain standards.”

The ARC report further said, “Staff is a resource

that an organization must possess to perform its
activities. Control over human resources is an
important element of organizational autonomy. In
this respect, Panchayats across our country present
a disquieting picture.”
The ARC has recommended that till the personnel
structure of PRIs takes a definite shape, the
employees of the state government may be taken on
deputation, but such deputation should be made
after the consent of the borrowing panchayat.
The ARC has also asked all states to undertake a
detailed review of staffing patterns and systems
over the next one year in order to implement the
policy of Panchayati raj Institution (PRI) ownership
of staff. Zila Parishads (district panchayats),