Subordinate Courts - family courts and gram nyayalayas | Indian Polity for UPSC CSE PDF Download

FAMILY COURTS

The Family Courts Act, 1984 provides for establishment of Family Courts by the State Governments in consultation with the High Courts with a view to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs

Main features

• To take the cases dealing with family matters away from the intimidating atmosphere of regular courts and ensure that a congenial environment is set up to deal with matters such as marriage, divorce, alimony, child custody etc. 
• To tackle the problem of pendency by improving the efficiency of the system, where courts are equipped with counselors and psychologists to ensure that while there may be core legal issues to be dealt with; there is also a human and psychological dimension to be dealt with in these matters. 
• It is mandatory for the State Government to set up a Family Court for every area in the State comprising a city or a town whose population exceeds one million.

Functioning

• Own rules: The Family Courts are free to evolve their own rules of procedure, which over ride the rules of procedure contemplated under the Code of Civil Procedure. 
• Conciliation: Special emphasis is put on settling the disputes by mediation and conciliation, when the matter is solved by an agreement between both the parties, it reduces the chances of any further conflict. 
• Away from legal system: The cases are kept away from the trappings of a formal legal system, which can be a very traumatic experience for the families and lead to personal and financial losses that can have a devastating effect on human relations as well. 
• No legal representation: A party is not entitled to be represented by a lawyer without the express permission of the Court. 
• Appointment of experts: Conciliators are professionals who are appointed by the Court. 
• Method: The proceedings before the Family Court are first referred to conciliation and only when the conciliation proceedings fail to resolve the issue successfully, the matter taken up for trial by the Court. 
• Appeal: Once a final order is passed, the aggrieved party has an option of filing an appeal before the High Court. 

Effective alternate dispute resolution forum

• Reduce workload on the courts and ensure speedy disposal of cases.
• Provides confidentiality for family matters. 
• Reverberations of a family dispute are felt in society. Their effective resolution by mediation or conciliation may provide lasting solutions for overall good. 
• The Mediation Cell of the Punjab and Haryana High Court, which attempts to patch up matrimonial disputes is a successful example.

Issues

• Continuity: No fixed tenure for counselors. For example, in the family courts at Tamil Nadu, the counselors are changed every three months. Thus, when cases stretch for a period of time which is longer than this, the aggrieved person has to adjust with new counselors and their story has to be retold several times. 
• Less power: It doesn’t explicitly empower Courts to grant injunctions to prevent domestic violence. 
• Not perceived well: Since the Family Court has restrictive jurisdiction and does not have the power to decide issues of contempt, people do not seem to take the court as seriously as they would a magistrate or a city civil court. 
• Lack of uniformity: Different High Courts have laid down different rules of the procedure, which is one of the reasons behind the fact that family disputes are still being heard by civil courts. 
• No legal representation: Parties are not entitled as of right to be represented by a legal practitioner. The fact that the proceedings are conciliatory does not relieve them of the complicated legal issues which may be involved in the family dispute.
  
  

  GRAM NYAYALAYAS

  
  

  Introduction : Equality and justice are indisputably two key facets of the idea of a modern, democratic, and constitution-adhering India. The principles of equality and justice are realized by the State apparatus through the business of administration of justice. India's judicial system is characterized by systemic problems, including corruption, delays, pendency, increasing costs, limited legal aid, and a lack of appropriately trained lawyers and judges.
  To overcome these problems the Law Ministry had set up Gram Nyayalays in 2009 with an aim to provide a cost-effective forum at the grass-root level for the poor living in villages to settle legal matters. It was established by the Gram Nyayalayas Act, 2008.
  This Act perpetuates the phenomenon of two sections of Indians - that of the better-resourced urban citizen who can afford and has access to the courts, and the other India of the impoverished - the more disconnected rural citizen, who gets primary access to forums that focus primarily on disposing of their claims, minus the application of essential safeguards of the legal process - lawyers, appeals, procedural protections, and evidentiary requirements.
  Gram Nyayalayas are mobile village courts in India established for speedy and easy access to justice system in the rural areas of India.
  They are aimed at providing inexpensive justice to people in rural areas at their doorsteps.
  The Act came into force on October 2, 2009 i.e. the birth anniversary of Mahatma Gandhi. (Gram stands for village; Nyay stands for Justice and Aalya stands for House/centre etc).
  
  Salient features of the Gram Nyayalayas Act
  The Gram Nyayalaya shall be court of Judicial Magistrate of the first class.
  Establishment
• The Gram Nyayalaya shall be established for every Panchayat at intermediate level or a group of contiguous Panchayats at intermediate level in a district or where there is no Panchayat at intermediate level in any State, for a group of contiguous Panchayats. 
• The seat of the Gram Nyayalaya will be located at the headquarters of the intermediate Panchayat; they will go to villages, work there and dispose of the cases.

Head of the Gram Nyayalayas

• The Nyayadhikaris who will preside over these Gram Nyayalayas are strictly judicial officers and will be drawing the same salary, deriving the same powers as First Class Magistrates working under High Courts. 
• He shall be appointed by the State Government in consultation with the High Court. 

Jurisdiction

• The Gram Nyayalaya shall be a mobile court and shall exercise the powers of both Criminal and Civil Courts. 
• The Gram Nyayalaya shall try criminal cases, civil suits, claims or disputes which are specified in the First Schedule and the Second Schedule to the Act. 
• The Central as well as the State Governments have been given power to amend the First Schedule and the Second Schedule of the Act, as per their respective legislative competence. 
• The Gram Nyayalaya shall exercise the powers of a Civil Court with certain modifications and shall follow the special procedure as provided in the Act. 
• The Gram Nyayalaya shall try to settle the disputes as far as possible by bringing about conciliation between the parties and for this purpose; it shall make use of the conciliators to be appointed for this purpose.

Summary Procedure

• The Gram Nyayalaya shall follow summary procedure in criminal trial. 
• The judgment and order passed by the Gram Nyayalaya shall be deemed to be a decree and to avoid delay in its execution; the Gram Nyayalaya shall follow summary procedure for its execution.

Summary Procedure: A legal procedure used for enforcing a right that takes effect faster and more efficiently than ordinary methods. The legal papers-a court order, for example-used to achieve an expeditious resolution of the controversy.

• The Gram Nyayalaya shall not be bound by the rules of evidence provided in the Indian Evidence Act, 1872 but shall be guided by the principles of natural justice and subject to any rule made by the High Court.

Appeal

• Appeal in criminal cases shall lie to the Court of Session, which shall be heard and disposed of within a period of six months from the date of filing of such appeal. 
• Appeal in civil cases shall lie to the District Court, which shall be heard and disposed of within a period of six months from the date of filing of the appeal. 
• A person accused of an offence may file an application for plea bargaining.

Ineffectiveness of the Gram Nyayalayas

• The Act has not been enforced properly, with only 194 functional Gram Nyayalayas in the country against a target of 5000 such courts. 
• The major reason behind the non-enforcement includes financial constraints, reluctance of lawyers, police officials and other State functionaries to invoke jurisdiction of Gram Nyayalayas, lukewarm response of the Bar, non-availability of notaries and stamp vendors etc. are some of the issues indicated by the States which are coming in the way of operationalisation of the Gram Nyayalayas. 
• Majority of States have now set up regular courts at Taluk level, thus reducing the demand for Gram Nyayalayas. 
• The Gram Nyayalaya uneasily straddles two approaches to legal system reform: expansion of the formal legal system and diversion from the mainstream legal system. Both these approaches rest on an understanding of a legal system which are conceptually inadequate and empirically suspect. 
• The Gram Nyayalayas are not only going to divert the existing disputes away from the civil and criminal court system and thereby speed up dispute resolution in the legal system. Instead they are likely to spawn a new arena where disputes which were hitherto resolved through other dispute processing mechanisms will now enter the legal system. 
• There has been no comprehensive empirical assessment of the success of diversion strategies towards reducing delay in the formal legal system. 
• There has been no rigorous assessment of the justice enhancing properties of these diversionary strategies. 
• In the absence of a separate cadre of Gram Nyayadhikari, the Gram Nyayalayas are presided over by First Class Judicial Magistrates or Civil Judges (grade I or grade II) or in a few cases Chief Judicial Magistrates who are already over burdened with their regular judicial work. 
• Further, the spirit of the legislation requires that as far as possible Gram Nyayalayas should be established where it would be of maximum utility to the villagers. But in practice some of the Gram Nyayalayas are established in cities/towns along with other regular courts having parallel jurisdiction. For example, in Indore the Gram Nyayalaya functions within the regular court premises. 
• The infrastructure and security are grossly inadequate. 
• Many of the stakeholders including the litigants, lawyers, police officers and others are not even aware about the existence of Gram Nyayalayas in the district court premises and no conferences or seminars have been organized for creating awareness about this institution. 
• There is ambiguity and confusion regarding the specific jurisdiction of Gram Nyayalayas, due to the existence of alternative forums such as labour courts, family courts, etc. 
• One of the objectives of the Act was to reduce pendency and burden on lower courts in the district but the study revealed that even this has not been fulfilled. The number of cases disposed by Gram Nyayalayas is negligible and that they do not make any substantial difference in the overall pendency in the subordinate courts. 
• Other reasons for the institution falling short of expectations have been the lack of cooperation from lawyers and Public Prosecutors. The reasons cited range from lack of economic viability or incentives/allowance to security issues, unsafe location of a Gram Nyayalaya (sometimes being close to a forest, where crime rates are high), etc.

The Department-Related Parliamentary Standing Committee, in its report to Parliament, expressed dismay that the Gram Nyayalayas which were supposed to usher in a revolution at the lowest level of the judicial system were being held back because of fund sharing problem between the Central and the State Governments.

Suggestions for optimizing the efficiency of Gram Nyayalayas

• Training of Gram Nyayadhikari: This is imperative keeping in mind the objectives of Gram Nyayalayas. Apart from the legal and procedural requirements of Gram Nyayalayas, training may also include the local language of the community amongst whom they are posted. 
• Infrastructure and Security: Separate building for the functioning of the Gram Nyayalaya as well as for the accommodation of the Gram Nyayadhikaris and other staff need to be constructed. Provision also has to be made for providing adequate security. 
• Creation of awareness among various stakeholders: Suitable steps may be taken for creating awareness among various stakeholders including the revenue and police officers. 
• Creation of a regular cadre of Gram Nyayadhikari: Officers recruited to this service ought to have a degree in social work apart from a law degree. However, some of the Gram Nyayadhikaris opined that creation of such a separate cadre might not be advisable due to the absence of chances of promotion. Instead, this could be made a compulsory service for a certain period for a newly recruited judicial officer to the regular cadre of first class judicial magistrates or civil judges. 
• Establishment of permanent Gram Nyayalayas: Gram Nyayalayas may be established in every Panchayats at intermediate level or group of contiguous Panchayats at intermediate level depending upon the number of disputes which normally arise from that area. While determining the location of the Gram Nyayalayas the location of courts having parallel jurisdiction may also be considered. 

The Jurisdiction of the Gram Nyayalayas may be redefined in order to remove the ambiguities regarding the jurisdiction of Gram Nyayalayas, and the Act amended.

Conclusion

• Family courts have enabled to take out the burden from courts and preserve the sanctity of family as a unit. Need is to empower these further and develop the necessary infrastructure.
• Despite these shortcomings, the institution of Gram Nyayalayas has been a positive step. Above everything else they need concrete, well planned and continuous efforts to make them work. The policy makers need to review, reflect and act upon the suggestions offered by stakeholders and firmly resolve to fulfill the mandate of the Act.
  The Preamble to the Gram Nyayalaya Act envisages access to justice to the citizens at their doorstep with the assurance that opportunities for securing justice are not denied to any citizen by reason of any disability whatsoever. Hence, the success of these institutions should not only be measured by the number of courts established in different states, but also in terms of reaching out to deprived sections of the society and its role in the overall reduction in the pendency of cases.