Indian Journal of Law and Legal Research Volume IV Issue I | ISSN: 2582-8878
GRASSROOT GOVERNANCE AND ITS ROLE IN
MEDIATION: THE ROLE AND CONTRIBUTION OF
PANCHAYAT RAJ IN AMPLIFICATION OF ALTERNATIVE
DISPUTE RESOLUTION IN INDIA
Ayushi Pandya, Amity University
ABSTRACT
Every culture has created its own system for resolving conflicts. From
ancient times, India has seen the informal settlement or resolution of local
disputes. However, we found no consistency in dispute resolution processes.
Because the majority of India's population lives in rural regions, democracy
should begin there in order to promote effective governance and the smooth
functioning of democracy that we seek. The Panchayati Raj system was
founded in India to provide democracy to rural India. We are not unfamiliar
with the concept of panchayat justice. Panchayats have played an essential
role in resolving disputes at the rural level since ancient times. Panchayat
justice is an idea that has been around for a long time. The panchayat system
has played an important role in resolving disputes at the village level from
ancient times. The Panchayat model relied on cultures, norms, religious
beliefs, and habits to resolve conflicts. Individual adjudicators were known
for their impartiality and fairness. This informal technique of resolving
village disputes evolved into a formal local governance system. Alternate
Dispute Resolution (ADR) has begun to share the burden of the formal
judiciary and is facilitating ways to deal with dispute and establish harmony
in our communities. The "Panchayat system" as a conflict settlement
mechanism in India from ancient times to the present is the subject of this
study.
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INTRODUCTION
Conflicts and wars have plagued humanity since its advent on the earth. The resolution of these
issues has become an integral component of society. Checking the effectiveness of the society's
conflict resolution process is one technique to gauge its development and successful operation.
A well-functioning justice system is not merely a sign of progress, but also a driver of progress.
As a result, access to justice is critical not only for the fulfilment of constitutionally protected
rights, but also for the achievement of broader development and poverty reduction goals, and
it urgently requires adoption as a development indicator.
India is predominantly a land of villages, with rural areas accounting for roughly 72 percent of
the country's overall population. The rural areas are thus the foundations of Indian governance,
and democracy should begin there. Mahatma Gandhi also stated that the village, not the great
cities, should be the focus of development and government because it is where India resides.
The process of democratising the justice system should begin at the grassroots level, with
current dispute resolution systems being transformed and sensitised to ensure human rights and
constitutional values, and tying them to the official court system.
The majority of disputes were settled using crude and informal procedures throughout the early
portion of history. These ad hoc processes evolved into more formal and structured methods
over time. The efficient resolution of conflicts is regarded as critical to fulfilling the goals of
justice. The function of law and the legal system in place for dispute resolution is said to be to
balance conflicting interests in society1. Every community has developed its own process for
resolving disputes, and each approach has its own distinct characteristics. Rather, indigenous
non-judicial conflict settlement methods have long been used by communities all across the
world. Aside from the traditional court model, most modern societies utilise various ways of
dispute resolution.
ADR
Alternate Dispute Resolution, or ADR, is a way of resolving disputes between parties that is
used by the State or the Sovereign government as an alternative to formal legal methodology
1
The Sociological school of jurisprudence of which Roscoe Pound is the ardent philosopher firmly believes in
this functional approach to the law and legal system. He calls it ‘Social Engineering’. Fitzgerald, Salmond on
Jurisprudence, p.n.9
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or the convention court system, i.e. settlement of disputes outside of the court. ADR is an
umbrella word that encompasses all legally permissible conflict settlement techniques other
than litigation2. This is the collective name for all of the means used by the parties to resolve
problems outside of the formal structure of the country's judiciary. What's new is the
widespread marketing and multiplication of ADR models, as well as the increased use of court-
connected ADR and ADR as a tool to achieve purposes other than the resolution of specific
disputes3. Since time immemorial, the belief has also been prominent in India. Throughout
history, man has experimented with procedure in order to make obtaining justice simple,
inexpensive, reliable, and convenient4. Although judicial resolution of conflicts is the most
prevalent way of dispute resolution in the modern period, it has significant disadvantages due
to its formality5. The traditional judicial system has a number of flaws, including lengthy
procedural delays, high expenses, and pointless appeals. Due to these shortcomings, the
sovereign who administers justice through the judiciary in the contemporary era had to consider
alternative modalities of conflict resolution, and ADR emerged as a viable option. The term
"alternative dispute resolution" refers to a variety of approaches such as mediation,
conciliation, and arbitration. Mediation, among these strategies, has taken on a new
significance in the modern period. It's a process that usually involves a neutral third party, or a
trained assistant, who either supports the parties to a disagreement in reaching an agreement or
enables the parties to the dispute in finding a solution to the problem.
Mediation is nothing more than guided negotiation in its most basic form6. However, mediation
can be broadly described as a voluntary process of dispute resolution in which a neutral third
party (the mediator) assists the parties in reaching an acceptable settlement7 via the use of
2
Bryan A. Garner, Black’s Law Dictionary (9th edn.)
3
Alternative Dispute Resolution, Practitioners’ Guide, Centre for Democracy and Governance, Washington,
1998
4
Dr. Shraddhakara Supakar, Law of Procedure and Justice in Ancient India, Deep & Deep Publication, New
Delhi,1986
5
The difficulties include, satisfaction of any one party involved in the dispute which sometimes is not fair,
heavy consumption of time and the costs, technicality, etc.
6
Tom Arnold, “Mediation Outline: A Practical How-to Guide for Mediators and Attorneys” in P.C. Rao and
William Sheffield (Eds.), Alternative Dispute Resolution 210(Universal Law Publishing Company Pvt ltd.,
Delhi, 1997);See also Stephen B Goldberg, Frank E.A. Sander, Nancy H. Rogers & S.R. Cole, Dispute
Resolution:Negotiation, Mediation and other Processes (Aspen Law & Business, New York, 3rd Edn.)
7
Black’s Law Dictionary defines Mediation as a method of non-binding dispute resolution involving a neutral
third party who tries to help the disputing parties to reach a mutually agreeable solution. See Bryan A. Garner
(Ed.), Black’s Law Dictionary 1003 (West Publishing Company, St. Paul, Minnesota, 8th Edn., 2004);
Mediation is therefore a facilitative process in which “disputing parties engage the assistance of an impartial
third party, the mediator, who helps them to try to arrive at an agreed resolution of their dispute. See Henry J.
Brown and Arthur L. Mariot, ADR Principles and Practice (Sweet & Maxwell, London, 2nd Edn., 1997)
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effective and specialised communication and negotiation strategies8. It comes from the Latin
word 'mediare,' which literally means 'to be in the centre.' Mediation saves both money and
time. According to current trends around the world, the method of mediation is rising in favour
as a dispute resolution mechanism, to the point where even legal bodies are promoting it9.
MEDIATION AS A CUSTOMARY LAW
Every community and society has its own technique of settling constituent problems, and it is
also noticed that the dispute resolution process is more varied and developed when the society's
history is lengthy and prosperous. India has a glorious past marred by colonial wounds; it is a
land of various cultures, and as a result, several dispute resolution processes have formed and
evolved over time. In India, law was viewed as a moral code or Dharma 10, rather than a set of
laws. Dharma, according to Indian tradition, is not a set of laws to be followed for its own
purpose. Dharma is a comprehensive notion with a clear end. Its goal when employed in the
sense of obligation is to keep everyone in their allocated role as established by the
dharmasastras11. The visible objective is to maintain the status quo in society, while the
ultimate goal is to provide each member of society with the opportunity to achieve his or her
ultimate goal of human existence12. Panchayat is not a recent phenomenon in India; it has
existed for centuries. Local disagreements have been resolved informally from ancient times
all around the country, but we couldn't find any consistency in the procedures utilised. Since
the dawn of time, mediation has been a preferred method of resolving conflicts in India. People
used to settle their conflicts through mediation before the advent of law courts. Mediation was
employed to resolve not only civil and criminal disputes between individuals, but also political
disputes between kingdoms. There were Sabha in the Rigvedic period, approximately 1200
B.C., that had the primary responsibility of administering the territory. The Sabha was
gradually replaced by the panchayat, which was so named because it was chaired by five
persons.
Because of the rise of the Zamindari system in rural areas during the Medieval period, the
panchayati system collapsed. As a result, the duty of administration was gradually transformed
8
Joanne Goss, “An Introduction to Alternative Dispute Resolution”, 34 (1) Alta. L. Rev. 1 (1995) (Can.)
9
The Supreme Court of India has constituted a permanent committee of the judges to address the matters
concerning mediation and is mandated to encourage and develop mediation as a dispute settlement mechanism
10
DISPUTE RESOLUTION IN RURAL INDIA: AN OVERVIEW,Written by Dr. Laju P. Thomas, St Mary's
,Thiruvananthapuram, pp 97-98
11
Ibid
12
Ibid
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into tax collection. The village had its own administration system at the time, however the
notion of panchayati raj had degraded. Old Indian epics such as the Mahabharata and
Ramayana, as well as ancient writings and formal socio-legal sources guiding people's
behaviour, give a significant testament to the prevalence of this technique for dispute
resolution13. "India lives in its villages,"14Gandhi famously declared. Bapu had always
advocated for self-rule, believing that people should be able to govern themselves, and he saw
tremendous promise in the nation's countryside.
He also used to argue that India's rural areas are the true India. India is the world's second-
biggest country and its largest democracy, and data suggests that its residents rely extensively
on mediation to settle their disagreements15. People who used to mediate disputes had a good
understanding of social, legal, moral, and religious concepts. Their wise men were held in great
regard in society and maintained these positions for the benefit of the people; they were neutral
and impartial, allowing them to find a solution that was mutually acceptable and beneficial to
both parties. The ancient Indian court system was not distinct from the executive, which
increased the importance of these mediators in conflict resolution. In ancient India's villages, a
permanent system of mediation was developed, referred to as 'Panchayat'. In the olden days,
the dispute settlement technique presently known as mediation was usually held by a person of
high respect and prestige among the people, and such mediation was referred to as
"Panchayat"16. Panchayats were separate systems of arbitration subordinate to normal courts
of law, according to Colebrooke, an English scholar and commentator on ancient Hindu law.
The town headmen, along with a council made up of other notable individuals, used to serve
as mediators. The individuals were known as "panchas," and they were known for their
integrity, quality, and character, as well as their impartiality. The "Sarpanch" led them. When
a problem was brought to the panchayat, the members, along with the parties, discussed and
deliberated until a settlement was reached that was acceptable to both parties in the issue, and
only those disputes that could not be resolved were referred to judicial experts for a final
judgement.
13
Law Beacon, Peer-reviewed, Bi-annual Journal Published by Akola Law College, Vol.1 ISBN 978-81-
930238-0-8, pp 92-96
14
Garg BS. Village First Community Empowerment on Health & Development Based on Gandhian Approach –
An Experience of Working in few Villages of Wardha District, Maharashtra Indian J Med Res 2019 , 149, suppl
S1: 63-67a.
15
Naidu, M. (2006). INDIAN DEMOCRACY: A CASE STUDY IN CONFLICT RESOLUTION AND PEACE
BUILDING. Peace Research, 38(2), 71-97. Retrieved May 5, 2020, from www.jstor.org/stable/23607991
16
http://delhimediationcentre.gov.in/history.htm
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Disputes used to infrequently reach the courts in the past. Even difficult criminal, civil, and
personal law concerns were resolved by the panchayat. The issues were resolved while taking
into account the local environment, language, customs, and practises. "Arbitration was indeed
a conspicuous element of ordinary Indian life, and it occurred in all levels of life to a
considerably higher extent than was the case in the case of the Europeans, referring a problem
to a Panch was a natural manner of resolving many issues in India"17, writes Martin, C.J. "Caste
panchayat" and "Village panchayat" were the two most common types of panchayat. The
Village Panchayat was primarily responsible for regulatory responsibilities, but it was also
responsible for resolving civil disputes between villages over land and dispensing criminal
justice. Caste panchayats were in charge of marriages, ceremonies, and jajmani. The panchayat
system had to deal with the blows and scars of foreign domination, particularly the Mughals,
during mediaeval times, yet the people still chose the indigenous way of conflict resolution to
the foreign origin court system."
ADR AND PANCHAYAT RAJ EVOLUTION18 19 20 21
In British India, Galanter and Bernard S. Cohn (1965) discovered two streams of legal systems
forming. 'Local law ways' referred to the local dispute settlement techniques that were prevalent
in rural India, as well as an adversarial mode of dispute resolution through the use of third-
party pleaders in court. The relationship between 'local law methods' and 'lawyers' law' might
be characterised by I complementarity and mutually reinforcing coexistence, or ii) conflict and
tension, culminating in a miscarriage of justice-values represented in either or both
(Baxi,1986:75). Cohn noticed a mismatch between traditional Indian norms and British-based
court values (Cohn, 1959: 90). Through constitution, the Gandhians were unable to establish a
government based on village autonomy and self-reliance. States like Madras, Mysore, and
Travancore had a system of village courts when the constitution was written. Following the
Directive Principles of state policy, the states of Madhya Pradesh and Uttar Pradesh formed
Nyaya panchayats. For a variety of causes, these judicial panchayats have been ignored. A
number of individuals and groups attempted to make the Gandhian notion of rural swaraj a
reality in various ways. The concepts of liberal constitutionalism and the Cornwallis model
17
Tewari, O.P, The Arbitration & Conciliation Act with Alternative Dispute Resolution, 4th Edition(2005)
Reprint
2007, Allahabad Law Agency, Faridabad, pp. 2- 4
18
The Constitution of India
19
The Code of Criminal Procedure, 1973
20
Arbitration and Conciliation Act 1996
21
Civil Procedure Code 1908
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legal system were passed down to the nationalist movement. It stifled Indian culture's diversity
and established a homogeneous worldview of justice. In contrast to the values of the traditional
Indian system of dispute settlement, India's constitution reflects many of the values inherent in
the western legal system. In addition to the general heritage of local customary dispute
resolution techniques, various exemplary mechanisms were seen in India's rural setting.
Among these, sarvodaya social worker Harivallah Parikh's People's Court was the most
impressive. It is fair to claim that the People's Court of Parikh was a forerunner of India's Lok
Adalat movement. 'The head of Lok Adalat, Parikh, earned credibility and a degree of charisma
through his role as a mediator in village disputes.' In response, he used Lok Adalat as a vehicle
for reform-oriented adult education to translate his vision of socio-economic transformations.
He turned adjudicatory occasions into educational ones, both through actual decisions and plain
preaching on a variety of topics, including family planning, the dangers of excessive alcohol
consumption, honesty in credit transactions, civil liberties, the irrationality of witchcraft belief,
women's equality, agricultural innovation, and so on (Baxi, 1986:77). Lok Adalat is a venue
for alternative dispute resolution (ADR) that has the ability to improve access to justice. They
are informal, flexible, and participative forums with the goal of encouraging settlements,
compromises, and avoiding litigation. Lok Adalats are voluntary mediation and conciliation
forums used by parties to a dispute to better understand their rights and obligations under the
law, as well as to facilitate the resolution or compromise of their differences. Lok Adalats do
not have legal standing to enforce its rulings. Lok Adalat judges, who are typically retired
judges, lawyers, or social workers, serve solely as mediators or conciliators. Articles 14 and 21
of the Indian Constitution, which deal with equality before the law and the right to life and
personal liberty, respectively, are the foundations of ADR in India. These Articles are
established in Part III of the Indian Constitution, which lists the people' Fundamental Rights.
ADR also aims to achieve Article 39-A of the Constitution's Directive Principle of State Policy
related to Equal Justice and Free Legal Aid. The Code of Civil Procedure (Amendment) Act,
1999 (CPC Amendment Act) was adopted in 1999, and a new Section 89 was added to the
Code of Civil Procedure. The concept of 'judicial mediation,' as opposed to 'voluntary
mediation,' is introduced in the new Section. A court can now identify circumstances in which
an amicable resolution is possible, construct the terms of such a resolution, and request the
parties to the dispute to comment on it. The Arbitration and Conciliation Act of 1996 and the
Legal Services Authorities Act of 1987 both deal with Alternative Dispute Resolution
procedures. ADR is not a new concept in India; it existed long before the 1940 Arbitration Act.
To fulfil the UNCITRAL Model's harmonisation mandates, the Arbitration and Conciliation
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Act of 1996 was enacted. The conventional civil law, known as the Code of Civil Procedure
(CPC) 1908, has also been altered, and section 89 has been established to streamline the Indian
legal system. Section 89 (1) of the CPC allows for dispute resolution outside of the courtroom.
It states that if the court believes there are components that the parties can agree on, the court
may formulate the terms of a possible settlement and submit it to arbitration, conciliation,
mediation, or judicial settlement. In India, there has been a strong emphasis on Alternative
Dispute Resolution techniques due to the exceedingly sluggish judicial process. In its working
paper on 'Alternative Forum for Dispute Resolution at Grassroot Level,' the Law Commission
stated that the current system of justice administration is unsuitable for the needs of our people,
and that the real solution lies in reforming the existing judicial system by taking some interim
steps right away. ADR has always been an important, vocal, and dynamic part of our history.
Conciliation cells working on a regular basis in some rural parts of Tamil Nadu are resolving
a substantial number of pre-litigation conflicts in a manner similar to Lok Adalats (Menon,
1986:129). Traditional communal conflict resolution systems, such as the tribal council of
Malana village in Himachal Pradesh, do not place a strong focus on the procedural side of the
law (Chitkara, 1993:33). Undoubtedly, Lok Adalat (Peoples' Court) concept and philosophy is
an innovative Indian contribution to the world of jurisprudence. It has very deep and long roots
not only in the recorded history but even in pre-historical era. It has been proved to be a very
effective alternative to litigation. The system has received laurels from the parties involved in
particular and the public and the legal functionaries, in general. It also helps in emergence of
jurisprudence of peace in the larger interest of justice and wider sections of society. While
Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the
Lok Adalat system constituted under National Legal Services Authority Act, 1987 is a uniquely
Indian approach.
BRITISH RAJ AND PANCHAYATI SYSTEM- PRE AND POST INDEPENDENCE
During the British reign in India, the Indian legal system underwent significant changes. The
law in mediaeval times was founded on religious texts as well as behaviours and customs.
British officers administered the codified statutory laws, which were written in English. For
the Indians, the foreign legal structure was unfamiliar and confusing. The English legal system
did not take into account Indian customs, practises, or rituals. The British officers were well-
versed in English law but struggled to understand the indigenous legal system, which turned
out to be a blessing in disguise for the Panchayat system. Traditional institutions served as
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acknowledged systems of justice administration, not just as alternatives to the British-
established formal court system. The two systems continued to run in the same direction22.
Gandhi, the hero of the Indian freedom struggle, a great lawyer and ardent proponent of
nonviolence and peace, had a deep conviction and faith in the Panchayat system as a dispute
resolution mechanism23. He claimed that because the English judicial system was not easily
accessible, the majority of Indians lived in villages and that panchayat was the only effective
manner of resolving disputes. At the time, ADR was not only a more convenient alternative,
but it was also seen as a politically safe and significant tool of dispute resolution. However,
with the arrival of the British Raj, these old institutions of dispute settlement began to fade,
and the British-imposed formal legal system took over24. To create rule of law, legislation such
as the Indian Penal Code and the Code of Criminal Code took over the panchayats. When
respected and neutral village elders were replaced by leaders based on caste, money, and
political affiliations who made judgments based on superstitions, personal interests, and moral
views, the Panchayat system suffered a huge defeat. They imposed heinous punishments such
as excommunication and honour killings, among other things. As a result, the indigenous
dispute-resolution process gradually lost respect and credibility, and the courts took over as
dispute adjudicators. Gandhiji recognised the British legal system, but believed that the
panchayat system should be expanded and run concurrently with the adversarial court system.
The question of panchayats was widely debated in India's Constituent Assembly. Many
legislators believed that the panchayat form of dispute resolution was Bapus dream and hence
deserved to be included in the Indian Constitution. As a result, several laws in this respect were
put into the Indian Constitution, and it was made mandatory for the Indian government to adopt
measures in this regard25 to some extent. As a result, our Constitution has Article 40, which
states, "The State shall take steps to organise village Panchayats and invest them with such
powers and authority as may be necessary to allow them to function as units of self-
government"26. Unfortunately, in the early years of independent India, little attention was paid
to the growth of the panchayat system because the state's main priority was to improve the
court system and make it more accessible to poor Indians. The importance of the judiciary was
22
Sarvesh Chandra, ADR: Is Conciliation the Best Choice, in P.C. Rao and William Sheffield (eds.), Alternative
Dispute Resolution: What it is and How it Works, Universal Law Publishing Co., New Delhi, (1997) p. 85
23
Supra 15
24
K. Jayachandra Reddy, Alternate Dispute Resolution, in P.C. Rao and William Sheffield (eds.), Alternative
Dispute Resolution: What it is and How it Works, Universal Law Publishing Co., New Delhi, (1997) p. 79
25
Part IX and Art.243 of the Indian Constitution make comprehensive provisions for establishment and
regulation of Panchayat system
26
The Constitution of India, 1950, Art. 40
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emphasised to the point where it became India's primary conflict resolution institution. As
every lawsuit filed had to follow the adversarial court system's strict standards and procedures,
there was a backlog of cases in the courts. The English-made legal system featured rigid
processes, such as the Code of Civil Procedure, Criminal Code, and Indian Evidence Act,
which had an impact on the quality and timeliness of justice delivery. The burdening of the
judiciary began when the English East India Company began to move away from the Mughal
system of justice and toward the English Court system. As more individuals got educated and
empowered after independence, the burdening increased. As a result, the state began looking
for other dispute resolution methods, and the value of panchayats was once again recognised
by the government. In 1957, the then-government established the Balwantrai Mehta
Committee, which suggested a three-tier Panchayati Raj system, with Gram Panchayats,
Panchayat Samitis, and Zilla Parishads at the village, block, and district levels, respectively.
Some states made bold steps to implement the recommendations, while others remained silent.
Globalisation and privatisation swept the globe at the turn of the twenty-first century. As
transportation and communication improved, more and more individuals began doing business
across borders. International growth and advancement of Mediation and Arbitration as a
conflict resolution tool is attributed to the rise in cross-border conflicts. Since each country had
its own set of laws, there was a problem of legal dispute. At the time, mediation offered a way
for resolving disputes amicably without relying on the laws of any one country. Because of this
intrinsic benefit of mediation, it has gained international acceptability, resulting in a large body
of legal law. Many legal experts believe India will become the world's Mediation centre. The
laws governing ADR in India prior to 1996 were primarily pre-independence and ineffective
in dealing with new concerns27. All of those laws were repealed by the 1996 law that governed
and regulated the process of arbitration, conciliation, and mediation in India. The Arbitration
and Conciliation Act of 1996, together with the Arbitration and Conciliation Act of 1996,
governs the process of mediation in India today. To some extent, the Civil Procedure Code also
governs mediation28. According to the Supreme Court of India, mediation is a non-adjudicatory
process aimed at a peaceful resolution of disputes between parties through the use of a
Mediator29. The Supreme Court of India has established unique training programmes for
mediators. The mediators become more proficient in handling the sessions after completing the
27
Before 1996 ADR in India was regulated via Arbitration (Protocol and Convention) Act, 1937; Indian
Arbitration Act, 1940 and Foreign Awards (Recognition and Enforcement) Act, 1961
28
Section 89 of Code of Civil Procedure 1908 read with Order X, Rules 1A, 1B and 1C
29
In Afcons Infrastructure Ltd. and Anr. v. Cherian Varkey Construction Co. (P) Ltd. and Ors. (2010) 8 SCC 24
the court equated mediation to the proceedings before Lok-Adalat
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training. Organizations like the Indian Institute of Mediation and the Delhi Mediation Centre
have done a lot to promote mediation in India. Legal Services Authorities are statutory
organisations established in India's states under the Legal Services Authorities Act 1987, which
is included in Article 39-A of the Indian Constitution, to provide free legal services to citizens.
If a person is unable to pay the legal fees, the authorities will provide them with free legal
assistance30 31
. Almost every state in India has its own legal services authority, which is the
main organisation in charge of dealing with legal issues of Mediation, Conciliation and Lok
Adalat.
In India, the panchayat system has lost its lustre, although it still remains for some
administrative functions and hasn't fully vanished. The government has recently taken many
initiatives to encourage mediation. In an attempt to revitalise the indigenous Panchayat system,
the Rajiv Gandhi government introduced the 73rd Constitutional Amendment32 in 1992,
mandating the establishment of the three-tier Panchayat system in every district. The
administration has made many moves in this direction in order to restore the panchayats'
judicial function. These entail the development of small panels at the village, block, and district
levels to settle local issues with the help of the police and other authorities, with surprisingly
positive results. This concept is working particularly well in Maharashtra and Madhya Pradesh.
Maharashtra's experience in this area is highly encouraging, and it underscores the relevance
of procedures like mediation in dispute resolution33. The success of this experiment is
reinforcing people's faith in the Panchayat system, which they created themselves.
Taking everything into account, it is extremely likely that India's time-tested Panchayat system
will come to the rescue of the overworked judiciary by providing easy, practical, and cost-
effective conflict resolution. The Panchayat system has proven to be quite effective in the past,
and it has played an important part in dispute resolution throughout history. The mediators'
abilities and competence, i.e. the "Sarpanch" and "panchas," must be channelled in order to
achieve successful dispute resolution. It is critical to ensure that Panchayats across India are
set up in such a way that facilitates the execution of this function of mediation. The government
should make sure that panchayats across India have the facilities they need to resolve disputes.
30
kelsa.nic.in The Legal Services Authorities Act of 1987
31
legalserviceindia.com
32
The Constitution (Seventy Third Amendment) Act, 1992
33
These Committees in Maharashtra are called ‘Tanta Mukta Samiti’ and they are aimed at achieving the goal
of dispute free village (“Tanta Mukta Gaon”)
http://www.mahapolice.gov.in/mahapolice/jsp/temp/disputefree.jsp
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The Village Headman and his council should be required to attend seminars and training
sessions to improve their skills as adjudicators and mediators in order to conduct sessions.
There is also a need to educate the general public about the benefits of this system in order to
dissuade them from approaching law courts. People should be provided appropriate incentives
and education to settle their disputes through mediation. The authorities should commend the
Panchayats that have successfully implemented the aforementioned approach. As the bulk of
the population lives in villages, this approach will be critical in giving a compelling alternative
for resolving disputes.
INCORPORATION OF PANCHAYAT RAJ IN THE CONSTITUTION
The notion of the village Panchayat continuing to serve as a judicial and administrative body
was discussed in the constituent assembly, but it was rejected. As a result, the only mention of
Panchayats in the Indian Constitution is in the Directive Principles of State Policy, which no
court can enforce. Even after independence, the core basis of the Indian legal system has
remained constant. It was clear soon after the announcement of the first five-year plan that
there were some flaws in achieving the plan's goals. Some states that did not have statutory
village panchayats established laws, while others strengthened their existing panchayats.
During the first decade after independence, the number of panchayats climbed from 14.8
thousand to 164.3 thousand.
Based on the suggestions of the Balwant Rai Mehta Committee, a methodology for developing
state plans for rural development on the basis of district and block plans was developed during
the third five-year plan, and attempts were made to establish a three-tier system of PRIs (1957).
'Community development can only be true when the community knows its problems,
recognises its duties, exercises appropriate powers through its elected representatives, and
keeps a persistent and intelligent vigilance on local administration,' the Committee said.
(Mehta, 1978, pp. 1-2) However, these concepts were not implemented since, with the
exception of a few states, PRIs were stagnating or falling following the early enthusiasm for
their creation. The National Development Council later confirmed the need for governmental
decentralisation, and panchayats were once again on the political agenda, with the term
"panchayati raj" becoming fashionable (quoted in Mukherjee, 1947). In the late 1960s and early
1970s, Jai Prakash Narayan was a strong supporter of Panchayats, with a vision that was fairly
radical, supporting the idea of party-less democracy. During the sixth five-year plan, the need
of implementing rural development programmes at the block level was emphasised. The failure
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of PRIs was attributed to a lack of resources, according to the Ashok Mehta Committee on
Panchayati Raj (1977), which advised that the falling Panchayati Raj system be revived and
strengthened. The Indian states of Karnataka, Andhra Pradesh, West Bengal and Telangana
have all responded positively to this report. The committee suggested that Nyaya Panchayats
be kept apart from development Panchayats and that a qualified judge preside over them. The
C.H. Hanumantha Rao group (1984) advised that the district planning process be sufficiently
decentralised, with a high level of autonomy, administrative, and financial adequacy. However,
in the late twentieth century, the concept of Panchayati Raj has resurfaced on the political
agenda. Since the early 1990s, there have been persistent attempts in the states to strengthen
and restore Panchayati Raj. By passing the Constitution Seventy-third Amendment Act, 1992,
the Indian Parliament introduced a new chapter (Part IX) to the constitution. It went into effect
in June 1993, marking a watershed moment in the country's history of local self-government.
It grants state governments a constitutional authority to rebuild and reestablish local
organisations as self-governing entities. The Act calls for I the establishment of a three-tiered
PRI system, (ii) the establishment of a State Election Commission, and (iii) the establishment
of a State Finance Commission.
The constitution's vision of self-government must include judicial powers as well, which is
why 'Nyaya Panchayats,' which imply judicial decentralisation at the grassroots level, were
created. In their State Panchayati Raj Acts, Andhra Pradesh, Maharashtra, Karnataka, Kerala,
and West Bengal have not created any statutory provisions for the establishment of Nyaya
Panchayats. However, in places like Bihar, Gujarat, Haryana, Himachal Pradesh, Manipur,
Mizoram, Punjab, Uttar Pradesh, Rajasthan, Sikkim, Madhya Pradesh, and Odisha, laws are
mostly ineffective.
In India, there are currently about 2.5 lakh Panchayati Raj Institutions. Nyaya Panchayats, if
established at the Gram Panchayat level, can deliver justice to the doorstep.
AMPLIFICATION OF THE CONCEPT
The Indian legislature recognised the necessity of mediation by enacting the Legal Services
Authorities Act, 198734, which established the Lok Adalat system. Lok Adalats give a forum
for resolving pre-litigation problems through amicable settlement.
34
Legal Services Authorities Act, 1987
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The 129th Law Commission Report on Urban Litigation and Mediation as Alternatives to
Adjudication, as well as the Arrears Committee Report, popularly known as the Justice
Malimath Committee Report, were both issued in 1988. Given the backlog of cases pending in
Indian courts, the Justice Malimath Committee advised that parties be encouraged to use
alternative dispute resolution procedures (ADRs) to resolve their differences. These
suggestions finally led to the Code of Civil Procedure (Amendment) Act of 199935, which
added Section 89 to the Code of Civil Procedure, 1908 ("CPC"). The courts were given the
authority under Section 89 CPC to refer issues to ADRs if they had the potential to be resolved
(which included arbitration, conciliation, mediation, judicial settlement)36.
The Tamil Nadu Mediation and Conciliation Centre, the first court-annexed mediation centre,
opened on April 9, 2005. Following that, in August 2005, Justice R.C. Lahoti, the ex-Chief
Justice of India, established a Mediation and Conciliation Project Committee to provide
mediation training to judges. Several High Courts now have their own mediation centres with
their own set of rules. In 2018, an amendment to the Commercial Courts Act, 2015, was
adopted, including Section 12-A, which mandates the parties to attempt to mediate their
disagreements before beginning judicial proceedings, recognising the potential of mediation
for rapid and cost-effective conflict settlement. In January 2020, the Supreme Court established
a team, led by Mr. Niranjan Bhat, to provide recommendations and create legislation codifying
mediation practise in India.
CONCLUSION
In recent years, the role and visibility of informal practises in India has dwindled. The village
elders' conflict resolution procedures are unquestionably expeditious. The way disagreements
are settled at the local level through mediation has a number of advantages. From the poor's
perspective, this is a quick way to settle their conflicts because they lack the time and finances
to engage in legal dispute resolution. As a result, rural India's issues are resolved through
conciliation and mediation. This heritage can be seen in ancient India's panchayat system. We
have now adopted court-annexed ADR techniques such as Lok Adalat and Family Court as a
means of extending local level mediation across the country37.
These attempts by the government and the judiciary to mainstream mediation have failed
because mediation's actual potential is still underutilised.
35
Code of Civil Procedure (Amendment) Act, 1999
36
Section 89 CPC
37
https://delhicourts.nic.in/dmc/history.htm, last visited on May 28, 2020
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