III) Q. ‘Adjustment of Law of Social needs is a continuing process’. In the light of this statement
discuss modernization trends in different areas.
(a) FAMILY LAW
In India, family law is divided into five schools, namely, Hindus, Muslims, Christians, Parsis and
Jews, each governed by their own family laws. The law which governs that particular family relating
to family relations, is called their family law.
Before 19th century all family laws were uncodified. But in 19th and 20th century a lot of
codifications took place for the development of personal laws.
Reforms in family law:-
(i) Restriction on Child Marriage:- The Child Marriage(Restraint) Act, was enacted in 1929 to
stop the customary practice of child marriage- marriage age 21 for male and 18 for female.
This Act has now been substituted by the Prohibition of Child Marriage Act, 2006.
(ii) Abolition of polygamy:- Before independence, polygamy existed in India, whereas it was an
offence punishable under section 494 IPC. The Muslim law restricted it to four marriages at
the time. The Christian law prohibits polygamy by Section 60 of Indian Christian Marriage
Act, 1872. Section 5 of Hindu Marriage Act, 1955 restricted Hindus to one marriage. The
Supreme Court in Saraa Mudgal’ case directed the Central Government to frame Uniform
Civil Code under Article 44 of the Constitution.
(iii) Prevention of Dowry system:- The Legislature has enacted special law on prohibition of
dowry, called the Dowry Prohibition Act, 1961 which provides penalty for taking or giving of
dowry.
(iv) Allowed inter-caste and inter-religious marriage:- Special Marriage Act, 1954 was enacted
to allow inter-caste and inter-religious marriage.
(v) Supreme Court ordered State to take stern action in case of honour killings.
(vi) Abolition of dasi and dev-dasi system:- The social evil of dasi and dev-dasi was abolished
from India by various State legislations.
(vii) Right to maintenance for Muslims women under Section 125 of Cr.PC:- In Shah Bano’s case
the Supreme Court held that the provisions relating to maintenance under section 125 of
Cr.PC are secular in nature and applicable to all citizens of India, irrespective of religion.
(viii) Separation of Family Courts:- Family Courts Act, 1984 was enacted to provide for the
establishment of Family Court with a view to promote conciliation and secure speedy
settlement of disputes relating to marriage, matrimonial disputes. The Family Court shall be
deemed to be a District Court
(ix) Grounds for dissolution of marriage to Muslim women was provided:- The Dissolution of
Muslim Marriage Act, 1930 provides that a woman married under Muslim law shall be
entitled to obtain a decree for dissolution of marriage on specific grounds.
(x) Adoption (in-country and inter-country) –Hindu Adoptionand Maintenance Act, 1956
applies to Hindu for adoption of a child. Guardian and Ward Act, 1890 was common for all
religions but that provides for appointment of guardian only. The Hon’ble Supreme Court
has issued guidelnes for Inter-country adoption and the Government of India has issued
Guideline 1994 for the same. The legislature has made provisions under the Juvenile
Justice(Care and Protection of Children) Act, 2000 to adopt children irrespective of having
any number of children.
(xi) Compulsory registration of marriage:- Marriages in India are governed by customs. The
Supreme Court has held that the marriage registration is compulsory in the whole territory
of India and has directed the Centre and States to make provisions.
(xii) Share of women in succession:- Hindu women are having equal share in the succession
according to the Amendment of 2005 in Hindu Succession Act.
(b) LOCAL SELF GOVERNMENT:
Mahatma Gandhiji said “A country cannot be developed without the participation of village unit
local self government’.
The Constitution makers have not given any importance to local self-government. Merely, Part IV
(Directive Principles off State Policies) has provided in the form of Article 40 about the organization of
village panchayats which states that “the State shall take steps to organize village panchayats and
endow them with such powers and authority as may be necessary to enable them to function as units of
self-government”.
To follow Article 40 many States have enacted the village panchayats and municipalities but they
were not able to function satisfactorily without constitutional powers.
Bodies of local self-government are divided into two parts:- rural and urben. In rural areas are is
three tier system, i.e., village panchayat, block development committee and the Zila Parishad. At the
urban level there is Nagar Panchayat, Municipal council and Municipal Corporation.
The Constitution (73rd Amendment) Act, 1992 gives recognition to Panchayats. Constitution (74th
Amendment) Act, 1992 gives recognition to Municipalities. By these Amendments 34 new Articles have
been inserted in Articles 243 to 243 ZG. Thus, a third tier of governmental instrumentalities has been
added to the Union and State. These Amendments made some fundamental changes in our political
structure and the status of local institutions which provide the State Legislatures to make their own laws
for establishing Panchayat, and Municipalities and conferring on them such powers and authority as
may be necessary to enable them to function as institutions of self-government. Now, almost all the
States have made Act on the Panchayati Raj, in the year 1993 or in 1994 to empower the units of
Panchayati Raj.
Local Self-Governing Bodies in Rural Areas:-
(i) The Village Panchayat(Gram Sabha):- It is the general body of a village elected by direct
election. Village Panchayat consists of some wards fromwhere members are sent to the
village panchayat. Pradhan(Sarpanch) is the Chairman of the village panchayat. The
function of the village panchayat is to prepare plans for economic development and social
justice in the village.
(ii) Panchayat Samiti (Block Development Committees or Taluka Panchayats):- This is a body
of the local self government at Block level and works for the development of a block. It have
a president(Parmukh) and a vice-president elected by direct election.
(iii) Zila Parishad or Zila Panchayat:- This is the highest level in the three tier system of local self
government. Its area extends to district or Zila. Zila Parishad prepares plans for the
development of its district. It also works for the social and economic welfare of the people.
At this level important officers of the district administration are also involved who give their
full-cooperation for the smooth and effective functioning of this body.
Local Self-Governing Bodies in Urban Areas:-
i.) NagarPanchayat:- It is the smaller unit of the urban population. For every town, a
Nagar Panchayat is elected for five years for a transitional area (called Kasba, in UP
or town ). (Article 243 Q(1)(a).
ii.) Municipal Council:-The In the cities which are bigger than towns, but not big cities,
there shall be constituted a Municipal Council for cities. (Article 243 Q(1)(b). It is
also called Municipal Committees or Municipal Boards.
iii.) Municipal Corporation:- In the mega cities, Municipal Corporation is elected.
Article (Article 243 Q(1)(c) provides that there shall be constituted a Municipal
Corporation for a larger urban area(big cities) like Delhi, Mumbai, Kolkata and
Hyderabad etc. This body is elected by direct election. The city is divided into wards
and each ward sends one representative to the corporation. The head or chairman
of the Corporation is known as Mayor or Mahapaur. The functions of the
Corporation are (i) the preparation of plans for economic development and social
justice; (ii) the performance of functions and the implementation of schemes as may
be entrusted to them including those in relation to the matters listed in the Twelfth
Schedule.
Some common provisions for Rural and Urban Panchayats
i.) Article 243 D for rural and Article 243 T for urban provides for reservation for SC
and STs in rotation.
ii.) Article 243 E for rural and 243 U for urban provides for duration of five years unless
sooner dissolved under law.
iii.) Article 243 H for rural and Art. 243X for urbal empower to impose taxes.
iv.) Article 243 I for rural and Art. 243 Y for urban provides for constitution of Finance
Commissions to review their financial position.
v.) Article 243 J for rural and Art. 243 Z provides for audit of accounts.
vi.) Article 243 ZD provides for Committees for district planning for overall development
of the district through local self government.
vii.) Article 243ZE provides for Committee for Metropolitan Planning to prepare a draft
development plan for the metropolitan area.
viii.) Article 243L for rural and 243 ZB for urban, provides that the provisions of these
parats shall apply to the UTs.
(c) Court Processes –(1) Civil Law:- Justice VR Krishna Iyer quotes “The poor cannot reach the court
because of heavy court fee and other expenditure, the mystique of legal procedure. The
hierarchy of courts, wth appeals, puts legal justice beyond the reach of the poor. “If the people
lose faith in the Bench and the Bar, they will easily take to remedies in the streets. This will
inevitably lead to downfall of democracy and the impotency of the court.”
Modernization trends in civil law: - This topic for the purposes of study may be divided into four
parts, namely [A] Alternate Dispute Resolution System(ADRS); [B] Arbitration; [C] Conciliation; and
[D] Lok Adalat.
[A] Alternate Dispute Resolution System(ADRS):-In ADRS the disputes are settled in a quick and
cost-effective manner as the procedure followed is non-formal without strict adherence to
procedural aspects. The Government has also given a tremendous boos to the ADRS by establishing
special tribunals and mediation centres by means of various Acts. Now, before the case could reach
the court of law, an endeavor is made to settle it through mediation centers set up at the district
level. At district court level and at the High Court also we find that full fledged system of mediation
centres is working very effectively. It is seen that the complex to complex disputes are settled
through trained mediators very quickly. On the consent of the parties the Court may also refer the
pending case to the mediation centre for settlement and if the dispute is settled through mediation,
the same is recorded and no appeal or review lies against the same.
[B] Arbitration:-The law relating to arbitration in India was governed by the Arbitration Act, 1940,
but in 1996 this Act was substituted by Arbitration and Conciliation Act, 1996. Halsbur denies
arbitration as “an arbitration is the reference of a dispute or difference between not less than two
parties for determination, after hearing both sides in judicial manner, by a person or persons other
than a court of competent jurisdiction.” Section 2(a) of the Arbitration and Conciliation Act, 1996
defines arbitration as “any arbitration whether or not administered by permanent arbitral
institutions”. An arbitral award made under this Act shall be considered as a domestic award.
The advantages of arbitration are that it is very expeditious, award can be quickly implemented,
cost of arbitration generally are lesser than cost of court proceedings; and arbitration proceedings
can be more flexible than those of court proceedings.
[C] Conciliation:- The Arbitration and Conciliation Act, 1996 makes express provisions for
conciliator. Before, these provisions there were special provisions for conciliation office, Board of
Conciliation under the I.D. Act, 1947. Conciliator is one who brings opponents into harmony, or one
who conciliates the parties.
Where a party is initiating conciliation, it shall send to the other party, a written invitation to
conciliate, briefly identifying the subject of the dispute. If the other party accepts in writing the
invitation to conciliate, then conciliation proceedings shall commence; but if the other party rejects
the invitation, there will be no conciliation proceedings.
Section 67 of the Arbitration and Conciliation Act defines the role of conciliator in the
conciliation proceedings. The Conciliator shall assist the parties in an independent and impartial
manner in their attempt to reach an amicable settlement. The settlement agreement reached
between the parties after conciliation becomes final and binding on the parties. Such settlement
agreement should be in writing and signed by the parties. When the parties sign the settlement
agreement, it shall be final and binding on the parties. The settlement agreement shall have the
same effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by
a an arbitral tribunal under section 30.
[D] Lok Adalat:- The Courts are heavily burdened with cases. There is already a backlog of lakhs of
cases in the Indian courts at various stages and thousands of new cases are filed daily. The number
of courts and number of judges are less as a result of which the backlog is increasing day by day.
Article 39-A of the Constitution of India provides for equal justice and free legal aid. It was in this
context that the Parliament enacted the Legal Services Authorities Act, 1987.
The Legal Service Authorities Act, 1987 provides for Lok Adalats. Lok Adalat is a supplementary
forum for the settlement of disputes. The Lok Adalats are meant under this Act for a speedy, simple,
effective and less expensive solution of the disputes of all kinds of cases except criminal cases and
cases in Session’s trial. This is the simplest method, which is devoid of procedural wrangles of
regular trial. The award of the Lok Adalat carries the force of the decrees of the civil court and is
final, binding and non-appealable.
Matters pending or at pre-trial stage, provided a reference is made to it, by a court or by the
concerned authority or committee, when the dispute is at the pre trial stage and not before a court
of law, can be referred to Lok Adalat. The Parliament enacted the Legal Services Authorities Act,
1987 with one of its aims to organize to organize Lok Adalats to secure that, the operation of legal
system promotes justice on the basis of an equal opportunity. The Act gives statutory recognition to
the resolution of disputes by compromise and settlement by the Lok Adalats.
In Abdul Hasan vs. Delhi Vidyut Board, AIR 1999 Delhi 88, the Delhi High Court passed an order
giving directing for setting up of permanent Lok Adalats.
Section 19(1) of the Legal Services Authority Act provides for organization of Lok Adalats at an
interval as thinks fit by the Supreme Court/High Court/State/Distt. Legal Services Authority.
Section 21 of the Act provides that every award of the Lok Adalat shall be deemed to be a
decree of a civil court... The award of the Lok Adalat shall be final and binding on all the parties to
the dispute and no appeal shall lie to any court against the award. Section 22 of the Act provides
that the Lok Adalat have the same powers as are vested in a civil court under CPC.
The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman with two
other members usually a lawyer and a social worker. There is no court fee.
The system of lok adalat is very effective and efficient, pioneering and soothing alternative
mode of dispute settlement which is accepted as viable, economic, efficient, informal, expeditious
form of resolution of disputes. It is a hybrid of admixture of mediation, negotiation, arbitration and
participation. The true basis of settlement of dispute by the Lok Adalat is the principle of mutual
consent. It will go a long way in the system of ADRS.
(2) Criminal Law:- Reform in the criminal court processes has taken place in various fields, but to
make the trial speedy and look into the rights of victims, three things are important, namely, plea
bargaining, compounding of offences and payment of compensation to the victims. When an
allegation is made against any person that he has committed a crime; the basic principle of law is
that offence should be proved by the prosecution which course takes a long time and results in
increasing load of cases in the courts, it is urged to introduce plea bargaining. Compounding of
offence is also not possible in all the cases but, a list of offences is prescribed by Cr.PC which may be
compensated, but not beyond this list. It is felt that in many case, if we are not compensating the
victim, justice is failed to be made.
1. PLEA BARGAINING:- Plea bargaining are legal transactions, in which a defendant pleads guilty to
a lesser charge or to the original charge in exchange for leniency in punishment.
The concept of plea bargaining is not defined under any statute but it literally means bargain
with accused person in pleading him guilty.
Difference between “plea of guilty” and “plea bargaining”:-
(a) the ‘plea of guilty’ is fully recognized by Indian criminal judicial system but ‘plea bargaining’ was
not recognized and accepted before the amendment of 2005.
(b) In the case of plea of guilty, the judiciary gives the punishment according to the offence plead
guilty. There is no mercy on the accused on the ground that he pleads guilty. In the case of plea
bargaining the court gives a lesser punishment.
(c) In plea of guilty the accused plead guilty at his free will and without any coercion or undue
influence, but in plea bargaining, the will of the accused is not fully free and fair but he is influenced
or coerced.
(d) In the case of plea of guilty there is no interference of any other person(prosecutor, Judge or
police) but, in plea bargaining, the accused is seemed to be compelled to plead guilty on agreement,
in return of imposition of nominal punishment.
Indian judiciary on plea bargaining:-
(a) Plea bargaining is not “procedure established by law”, hence violative of Article 21. (Kasambhai
Abdul Rehman Bhai Sheikh vs. State of Gujarat, AIR 1980 SC 854).
(b) Enhancement of sentence by appellate or revisional court, is violative of Art. 21. (Thippeswamy
vs. State of Karnataka, AIR 1983 SC 747).
The Criminal Law (Amendment) Act, 2005:- Section 4 of the Act has inserted the provisions relating
to plea bargaining as a new Chapter XXI-A (12 sections Sec. 265 A to 265 L) in the Cr.PC.
(i) Application of plea bargaining:- Application for plea bargaining may be filed (a) where a
report of the police officer after completion of investigation, alleges that the accused has
committed the offence punishable upto seven years of imprisonment; (but not punishable
with death sentence or imprisonment for life) or (b) A Magistrate has taken cognizance of an
offence on complaint punishable upto seven years of imprisonment(but not punishable with
death sentence or imprisonment for life); and after examining the complaint and witnesses,
issued the process against the accused.
(ii) Restriction on plea bargaining:- Application for plea bargaining cannot be allowed in (a)
socio-economic offences; (b) offences against women; (c) any offence against children
below the age of 14 years.
(iii) Procedure for plea bargaining:- Accused files an application before the court where the trial
is pending, application shall contain brief description of case, supported with an affidavit of
the accused that he has voluntarily preferred this application and he has not previously
been convicted by a court in a case in which he had been charged with the same offence.
On receipt of such application the court shall issue notice to the PP or the complainant and
to the accused to appear. When they appear the court shall examine the accused in camera
where the other party in the case shall not be present, to satisfy itself that the accused has
filed the application voluntarily.
(iv) Mutually satisfactory disposition:- On reaching a mutual settlement of the case, the plea
bargaining court sends the report of the mutually satisfactory disposition to the court where
the matter was pending who records the settlement and dispose of the case accordingly.
The judgment given by the court shall be final and no appeal(except SLP under Art. 136 and
writ under 226 and 227) shall like in any court against such judgment.
2. COMPOUNDING OF OFFENCES:- The meaning of compounding of offence means that both the
parties arrived at a settlement between them. But this is not allowed in every case; compounding of
offence is not allowed other than in the offences listed under section 320 of Cr.PC.
It is to be noted that all crimes are against the State and offender shall be punished by the
appropriate authority to maintain law and order. But, still section 320 Cr.PC provides for compounding
of offences. Before compounding, the parties have to take the permission of the court before which the
case is pending.
The Supreme Court has held that the policy of parliament adopting section 320 CrPC is that in
the case of certain minor offences, in which interest of the public are not vitally affected, the
complainant should be permitted to come to terms with the party against whom he complains, the
offence being specified in section. The court also made provision for composition of this so that the law
must take its course and the charge enquired into resulting either in conviction or acquittal.
[Bishwabahan v. Gopen AIRF 1967 SC 895].
3. COMPENSATIN TO THE VICTIMS:- The principle object of section 357 Cr.PC is to provide
compensation to the persons who are entitled to recover damages from the person sentenced even
though fine does not form pat of the sentence. In awarding compensation it is not necessary for the
court to decide whether the case is fit one in which compensation has to be awarded. If it is found that
compensation should be paid then the capacity of the accused to pay compensation has to be
determined. The main object of compensation is to collect fine and pay it to the person who has
suffered the loss.
Provisions for payment of compensation to victims under criminal law is provided under section
357 of Cr.PC. The power of court to award compensation to victim under section 357 is not ancillary to
other sentences, but it is in addition thereto. In awarding compensation, no sum in excess of the loss
actually suffered by the complainant should be ordered to be paid.
In Rudal Shah v. State of Bihar AIR 1983 SC 1086, the Supreme Court evolved a principle that “if
any fundamental right of any person is violated, and no remedy is provided by the law, then victim can
be compensated in monetary form”.
Compensation to the victims is a kind of relief which surely will be beneficial for the
rehabilitation of the victims and their relatives.
discuss modernization trends in different areas.
(a) FAMILY LAW
In India, family law is divided into five schools, namely, Hindus, Muslims, Christians, Parsis and
Jews, each governed by their own family laws. The law which governs that particular family relating
to family relations, is called their family law.
Before 19th century all family laws were uncodified. But in 19th and 20th century a lot of
codifications took place for the development of personal laws.
Reforms in family law:-
(i) Restriction on Child Marriage:- The Child Marriage(Restraint) Act, was enacted in 1929 to
stop the customary practice of child marriage- marriage age 21 for male and 18 for female.
This Act has now been substituted by the Prohibition of Child Marriage Act, 2006.
(ii) Abolition of polygamy:- Before independence, polygamy existed in India, whereas it was an
offence punishable under section 494 IPC. The Muslim law restricted it to four marriages at
the time. The Christian law prohibits polygamy by Section 60 of Indian Christian Marriage
Act, 1872. Section 5 of Hindu Marriage Act, 1955 restricted Hindus to one marriage. The
Supreme Court in Saraa Mudgal’ case directed the Central Government to frame Uniform
Civil Code under Article 44 of the Constitution.
(iii) Prevention of Dowry system:- The Legislature has enacted special law on prohibition of
dowry, called the Dowry Prohibition Act, 1961 which provides penalty for taking or giving of
dowry.
(iv) Allowed inter-caste and inter-religious marriage:- Special Marriage Act, 1954 was enacted
to allow inter-caste and inter-religious marriage.
(v) Supreme Court ordered State to take stern action in case of honour killings.
(vi) Abolition of dasi and dev-dasi system:- The social evil of dasi and dev-dasi was abolished
from India by various State legislations.
(vii) Right to maintenance for Muslims women under Section 125 of Cr.PC:- In Shah Bano’s case
the Supreme Court held that the provisions relating to maintenance under section 125 of
Cr.PC are secular in nature and applicable to all citizens of India, irrespective of religion.
(viii) Separation of Family Courts:- Family Courts Act, 1984 was enacted to provide for the
establishment of Family Court with a view to promote conciliation and secure speedy
settlement of disputes relating to marriage, matrimonial disputes. The Family Court shall be
deemed to be a District Court
(ix) Grounds for dissolution of marriage to Muslim women was provided:- The Dissolution of
Muslim Marriage Act, 1930 provides that a woman married under Muslim law shall be
entitled to obtain a decree for dissolution of marriage on specific grounds.
(x) Adoption (in-country and inter-country) –Hindu Adoptionand Maintenance Act, 1956
applies to Hindu for adoption of a child. Guardian and Ward Act, 1890 was common for all
religions but that provides for appointment of guardian only. The Hon’ble Supreme Court
has issued guidelnes for Inter-country adoption and the Government of India has issued
Guideline 1994 for the same. The legislature has made provisions under the Juvenile
Justice(Care and Protection of Children) Act, 2000 to adopt children irrespective of having
any number of children.
(xi) Compulsory registration of marriage:- Marriages in India are governed by customs. The
Supreme Court has held that the marriage registration is compulsory in the whole territory
of India and has directed the Centre and States to make provisions.
(xii) Share of women in succession:- Hindu women are having equal share in the succession
according to the Amendment of 2005 in Hindu Succession Act.
(b) LOCAL SELF GOVERNMENT:
Mahatma Gandhiji said “A country cannot be developed without the participation of village unit
local self government’.
The Constitution makers have not given any importance to local self-government. Merely, Part IV
(Directive Principles off State Policies) has provided in the form of Article 40 about the organization of
village panchayats which states that “the State shall take steps to organize village panchayats and
endow them with such powers and authority as may be necessary to enable them to function as units of
self-government”.
To follow Article 40 many States have enacted the village panchayats and municipalities but they
were not able to function satisfactorily without constitutional powers.
Bodies of local self-government are divided into two parts:- rural and urben. In rural areas are is
three tier system, i.e., village panchayat, block development committee and the Zila Parishad. At the
urban level there is Nagar Panchayat, Municipal council and Municipal Corporation.
The Constitution (73rd Amendment) Act, 1992 gives recognition to Panchayats. Constitution (74th
Amendment) Act, 1992 gives recognition to Municipalities. By these Amendments 34 new Articles have
been inserted in Articles 243 to 243 ZG. Thus, a third tier of governmental instrumentalities has been
added to the Union and State. These Amendments made some fundamental changes in our political
structure and the status of local institutions which provide the State Legislatures to make their own laws
for establishing Panchayat, and Municipalities and conferring on them such powers and authority as
may be necessary to enable them to function as institutions of self-government. Now, almost all the
States have made Act on the Panchayati Raj, in the year 1993 or in 1994 to empower the units of
Panchayati Raj.
Local Self-Governing Bodies in Rural Areas:-
(i) The Village Panchayat(Gram Sabha):- It is the general body of a village elected by direct
election. Village Panchayat consists of some wards fromwhere members are sent to the
village panchayat. Pradhan(Sarpanch) is the Chairman of the village panchayat. The
function of the village panchayat is to prepare plans for economic development and social
justice in the village.
(ii) Panchayat Samiti (Block Development Committees or Taluka Panchayats):- This is a body
of the local self government at Block level and works for the development of a block. It have
a president(Parmukh) and a vice-president elected by direct election.
(iii) Zila Parishad or Zila Panchayat:- This is the highest level in the three tier system of local self
government. Its area extends to district or Zila. Zila Parishad prepares plans for the
development of its district. It also works for the social and economic welfare of the people.
At this level important officers of the district administration are also involved who give their
full-cooperation for the smooth and effective functioning of this body.
Local Self-Governing Bodies in Urban Areas:-
i.) NagarPanchayat:- It is the smaller unit of the urban population. For every town, a
Nagar Panchayat is elected for five years for a transitional area (called Kasba, in UP
or town ). (Article 243 Q(1)(a).
ii.) Municipal Council:-The In the cities which are bigger than towns, but not big cities,
there shall be constituted a Municipal Council for cities. (Article 243 Q(1)(b). It is
also called Municipal Committees or Municipal Boards.
iii.) Municipal Corporation:- In the mega cities, Municipal Corporation is elected.
Article (Article 243 Q(1)(c) provides that there shall be constituted a Municipal
Corporation for a larger urban area(big cities) like Delhi, Mumbai, Kolkata and
Hyderabad etc. This body is elected by direct election. The city is divided into wards
and each ward sends one representative to the corporation. The head or chairman
of the Corporation is known as Mayor or Mahapaur. The functions of the
Corporation are (i) the preparation of plans for economic development and social
justice; (ii) the performance of functions and the implementation of schemes as may
be entrusted to them including those in relation to the matters listed in the Twelfth
Schedule.
Some common provisions for Rural and Urban Panchayats
i.) Article 243 D for rural and Article 243 T for urban provides for reservation for SC
and STs in rotation.
ii.) Article 243 E for rural and 243 U for urban provides for duration of five years unless
sooner dissolved under law.
iii.) Article 243 H for rural and Art. 243X for urbal empower to impose taxes.
iv.) Article 243 I for rural and Art. 243 Y for urban provides for constitution of Finance
Commissions to review their financial position.
v.) Article 243 J for rural and Art. 243 Z provides for audit of accounts.
vi.) Article 243 ZD provides for Committees for district planning for overall development
of the district through local self government.
vii.) Article 243ZE provides for Committee for Metropolitan Planning to prepare a draft
development plan for the metropolitan area.
viii.) Article 243L for rural and 243 ZB for urban, provides that the provisions of these
parats shall apply to the UTs.
(c) Court Processes –(1) Civil Law:- Justice VR Krishna Iyer quotes “The poor cannot reach the court
because of heavy court fee and other expenditure, the mystique of legal procedure. The
hierarchy of courts, wth appeals, puts legal justice beyond the reach of the poor. “If the people
lose faith in the Bench and the Bar, they will easily take to remedies in the streets. This will
inevitably lead to downfall of democracy and the impotency of the court.”
Modernization trends in civil law: - This topic for the purposes of study may be divided into four
parts, namely [A] Alternate Dispute Resolution System(ADRS); [B] Arbitration; [C] Conciliation; and
[D] Lok Adalat.
[A] Alternate Dispute Resolution System(ADRS):-In ADRS the disputes are settled in a quick and
cost-effective manner as the procedure followed is non-formal without strict adherence to
procedural aspects. The Government has also given a tremendous boos to the ADRS by establishing
special tribunals and mediation centres by means of various Acts. Now, before the case could reach
the court of law, an endeavor is made to settle it through mediation centers set up at the district
level. At district court level and at the High Court also we find that full fledged system of mediation
centres is working very effectively. It is seen that the complex to complex disputes are settled
through trained mediators very quickly. On the consent of the parties the Court may also refer the
pending case to the mediation centre for settlement and if the dispute is settled through mediation,
the same is recorded and no appeal or review lies against the same.
[B] Arbitration:-The law relating to arbitration in India was governed by the Arbitration Act, 1940,
but in 1996 this Act was substituted by Arbitration and Conciliation Act, 1996. Halsbur denies
arbitration as “an arbitration is the reference of a dispute or difference between not less than two
parties for determination, after hearing both sides in judicial manner, by a person or persons other
than a court of competent jurisdiction.” Section 2(a) of the Arbitration and Conciliation Act, 1996
defines arbitration as “any arbitration whether or not administered by permanent arbitral
institutions”. An arbitral award made under this Act shall be considered as a domestic award.
The advantages of arbitration are that it is very expeditious, award can be quickly implemented,
cost of arbitration generally are lesser than cost of court proceedings; and arbitration proceedings
can be more flexible than those of court proceedings.
[C] Conciliation:- The Arbitration and Conciliation Act, 1996 makes express provisions for
conciliator. Before, these provisions there were special provisions for conciliation office, Board of
Conciliation under the I.D. Act, 1947. Conciliator is one who brings opponents into harmony, or one
who conciliates the parties.
Where a party is initiating conciliation, it shall send to the other party, a written invitation to
conciliate, briefly identifying the subject of the dispute. If the other party accepts in writing the
invitation to conciliate, then conciliation proceedings shall commence; but if the other party rejects
the invitation, there will be no conciliation proceedings.
Section 67 of the Arbitration and Conciliation Act defines the role of conciliator in the
conciliation proceedings. The Conciliator shall assist the parties in an independent and impartial
manner in their attempt to reach an amicable settlement. The settlement agreement reached
between the parties after conciliation becomes final and binding on the parties. Such settlement
agreement should be in writing and signed by the parties. When the parties sign the settlement
agreement, it shall be final and binding on the parties. The settlement agreement shall have the
same effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by
a an arbitral tribunal under section 30.
[D] Lok Adalat:- The Courts are heavily burdened with cases. There is already a backlog of lakhs of
cases in the Indian courts at various stages and thousands of new cases are filed daily. The number
of courts and number of judges are less as a result of which the backlog is increasing day by day.
Article 39-A of the Constitution of India provides for equal justice and free legal aid. It was in this
context that the Parliament enacted the Legal Services Authorities Act, 1987.
The Legal Service Authorities Act, 1987 provides for Lok Adalats. Lok Adalat is a supplementary
forum for the settlement of disputes. The Lok Adalats are meant under this Act for a speedy, simple,
effective and less expensive solution of the disputes of all kinds of cases except criminal cases and
cases in Session’s trial. This is the simplest method, which is devoid of procedural wrangles of
regular trial. The award of the Lok Adalat carries the force of the decrees of the civil court and is
final, binding and non-appealable.
Matters pending or at pre-trial stage, provided a reference is made to it, by a court or by the
concerned authority or committee, when the dispute is at the pre trial stage and not before a court
of law, can be referred to Lok Adalat. The Parliament enacted the Legal Services Authorities Act,
1987 with one of its aims to organize to organize Lok Adalats to secure that, the operation of legal
system promotes justice on the basis of an equal opportunity. The Act gives statutory recognition to
the resolution of disputes by compromise and settlement by the Lok Adalats.
In Abdul Hasan vs. Delhi Vidyut Board, AIR 1999 Delhi 88, the Delhi High Court passed an order
giving directing for setting up of permanent Lok Adalats.
Section 19(1) of the Legal Services Authority Act provides for organization of Lok Adalats at an
interval as thinks fit by the Supreme Court/High Court/State/Distt. Legal Services Authority.
Section 21 of the Act provides that every award of the Lok Adalat shall be deemed to be a
decree of a civil court... The award of the Lok Adalat shall be final and binding on all the parties to
the dispute and no appeal shall lie to any court against the award. Section 22 of the Act provides
that the Lok Adalat have the same powers as are vested in a civil court under CPC.
The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman with two
other members usually a lawyer and a social worker. There is no court fee.
The system of lok adalat is very effective and efficient, pioneering and soothing alternative
mode of dispute settlement which is accepted as viable, economic, efficient, informal, expeditious
form of resolution of disputes. It is a hybrid of admixture of mediation, negotiation, arbitration and
participation. The true basis of settlement of dispute by the Lok Adalat is the principle of mutual
consent. It will go a long way in the system of ADRS.
(2) Criminal Law:- Reform in the criminal court processes has taken place in various fields, but to
make the trial speedy and look into the rights of victims, three things are important, namely, plea
bargaining, compounding of offences and payment of compensation to the victims. When an
allegation is made against any person that he has committed a crime; the basic principle of law is
that offence should be proved by the prosecution which course takes a long time and results in
increasing load of cases in the courts, it is urged to introduce plea bargaining. Compounding of
offence is also not possible in all the cases but, a list of offences is prescribed by Cr.PC which may be
compensated, but not beyond this list. It is felt that in many case, if we are not compensating the
victim, justice is failed to be made.
1. PLEA BARGAINING:- Plea bargaining are legal transactions, in which a defendant pleads guilty to
a lesser charge or to the original charge in exchange for leniency in punishment.
The concept of plea bargaining is not defined under any statute but it literally means bargain
with accused person in pleading him guilty.
Difference between “plea of guilty” and “plea bargaining”:-
(a) the ‘plea of guilty’ is fully recognized by Indian criminal judicial system but ‘plea bargaining’ was
not recognized and accepted before the amendment of 2005.
(b) In the case of plea of guilty, the judiciary gives the punishment according to the offence plead
guilty. There is no mercy on the accused on the ground that he pleads guilty. In the case of plea
bargaining the court gives a lesser punishment.
(c) In plea of guilty the accused plead guilty at his free will and without any coercion or undue
influence, but in plea bargaining, the will of the accused is not fully free and fair but he is influenced
or coerced.
(d) In the case of plea of guilty there is no interference of any other person(prosecutor, Judge or
police) but, in plea bargaining, the accused is seemed to be compelled to plead guilty on agreement,
in return of imposition of nominal punishment.
Indian judiciary on plea bargaining:-
(a) Plea bargaining is not “procedure established by law”, hence violative of Article 21. (Kasambhai
Abdul Rehman Bhai Sheikh vs. State of Gujarat, AIR 1980 SC 854).
(b) Enhancement of sentence by appellate or revisional court, is violative of Art. 21. (Thippeswamy
vs. State of Karnataka, AIR 1983 SC 747).
The Criminal Law (Amendment) Act, 2005:- Section 4 of the Act has inserted the provisions relating
to plea bargaining as a new Chapter XXI-A (12 sections Sec. 265 A to 265 L) in the Cr.PC.
(i) Application of plea bargaining:- Application for plea bargaining may be filed (a) where a
report of the police officer after completion of investigation, alleges that the accused has
committed the offence punishable upto seven years of imprisonment; (but not punishable
with death sentence or imprisonment for life) or (b) A Magistrate has taken cognizance of an
offence on complaint punishable upto seven years of imprisonment(but not punishable with
death sentence or imprisonment for life); and after examining the complaint and witnesses,
issued the process against the accused.
(ii) Restriction on plea bargaining:- Application for plea bargaining cannot be allowed in (a)
socio-economic offences; (b) offences against women; (c) any offence against children
below the age of 14 years.
(iii) Procedure for plea bargaining:- Accused files an application before the court where the trial
is pending, application shall contain brief description of case, supported with an affidavit of
the accused that he has voluntarily preferred this application and he has not previously
been convicted by a court in a case in which he had been charged with the same offence.
On receipt of such application the court shall issue notice to the PP or the complainant and
to the accused to appear. When they appear the court shall examine the accused in camera
where the other party in the case shall not be present, to satisfy itself that the accused has
filed the application voluntarily.
(iv) Mutually satisfactory disposition:- On reaching a mutual settlement of the case, the plea
bargaining court sends the report of the mutually satisfactory disposition to the court where
the matter was pending who records the settlement and dispose of the case accordingly.
The judgment given by the court shall be final and no appeal(except SLP under Art. 136 and
writ under 226 and 227) shall like in any court against such judgment.
2. COMPOUNDING OF OFFENCES:- The meaning of compounding of offence means that both the
parties arrived at a settlement between them. But this is not allowed in every case; compounding of
offence is not allowed other than in the offences listed under section 320 of Cr.PC.
It is to be noted that all crimes are against the State and offender shall be punished by the
appropriate authority to maintain law and order. But, still section 320 Cr.PC provides for compounding
of offences. Before compounding, the parties have to take the permission of the court before which the
case is pending.
The Supreme Court has held that the policy of parliament adopting section 320 CrPC is that in
the case of certain minor offences, in which interest of the public are not vitally affected, the
complainant should be permitted to come to terms with the party against whom he complains, the
offence being specified in section. The court also made provision for composition of this so that the law
must take its course and the charge enquired into resulting either in conviction or acquittal.
[Bishwabahan v. Gopen AIRF 1967 SC 895].
3. COMPENSATIN TO THE VICTIMS:- The principle object of section 357 Cr.PC is to provide
compensation to the persons who are entitled to recover damages from the person sentenced even
though fine does not form pat of the sentence. In awarding compensation it is not necessary for the
court to decide whether the case is fit one in which compensation has to be awarded. If it is found that
compensation should be paid then the capacity of the accused to pay compensation has to be
determined. The main object of compensation is to collect fine and pay it to the person who has
suffered the loss.
Provisions for payment of compensation to victims under criminal law is provided under section
357 of Cr.PC. The power of court to award compensation to victim under section 357 is not ancillary to
other sentences, but it is in addition thereto. In awarding compensation, no sum in excess of the loss
actually suffered by the complainant should be ordered to be paid.
In Rudal Shah v. State of Bihar AIR 1983 SC 1086, the Supreme Court evolved a principle that “if
any fundamental right of any person is violated, and no remedy is provided by the law, then victim can
be compensated in monetary form”.
Compensation to the victims is a kind of relief which surely will be beneficial for the
rehabilitation of the victims and their relatives.
