2. THE CEYLONESE SCHEME AND INDIAN MODEL
Once the policy decision was made to institutionalize a new conflict-resolving mechanism, there was some speculation as to the extent to which foreign models were consulted during the drafting process.
Although an opposition member angrily charged, during the Senate debate, that the Conciliation Boards Bill which passed as the Conciliation Boards Act, No. 10 of 1958 was an attempt to politicize the judicial system along the lines of the Peoples Courts in Communist countries, there was little concrete evidence to suggest that M. W. H. de Silva made any effort to study the socialist models. Our interviews with his officials in the Ministry also reveal that very little was known at that time of popular justice in the Soviet Union or in China (supra Note 4). We have already mentioned M. W. H. de Silva's interest in the statutory Nyaya Panchayats, and it appears that he did examine the West Bengal Panchayat Act, No. 1 of 1957. A copy of the Act was also available to the legal draftsmen during the drafting process. As a result there are some similarities between the Conciliation Boards legislation and the West Bengal Panchayat Act which need to be explored. Firstly, in both societies, although there had been several previous efforts by the state to encourage the extra-judicial settlement of disputes,10 the effectiveness of these schemes was to a large extent dependent on the esteem and recognition which the tribunal received from the community in which it was located. It was soon felt that the success of such reforms was too important to be left to the vagaries of local community sentiments, and that the new mechanisms for conflict resolution needed to be propped up by the authority and prestige of the state. Under both the West Bengal and the Ceylonese Acts, the state assumed the obligation to establish these tribunals in areas covered by the Act, and to arrange for the recruitment of members.11 The state indirectly compelled disputants to take their claims to these tribunals by either limiting or barring access to the official courts of law. It imposed sanctions through its judicial machinery on persons who disregarded summons to attend inquiries or to produce documents, or in any other way conducted themselves in a disorderly and disrespectful manner towards these tribunals.12Secondly, as we turn to more specific provisions we see similar recruitment schemes adopted in the Conciliation Boards and the West Panchayat Acts. As regards the statutory Nyaya Panchayats in the various Indian states, the question as to whether a system of nomination was to be preferred to a system of selection at the local level has been thought to raise difficult questions of policy. The protagonists of the nominative scheme have pointed out that nomination by a central authority would render it possible for objective criteria such as education, social standing, etc. to be taken into account in the recruitment of Panchayat members. Besides it would prevent the interjection of local factionalism and rivalries into the working of these tribunals which might otherwise tend to be overwhelmed by such forces. The opponents however pointed out that the intervention of external authority in the recruitment process would tend to alienate the local populace from these institutions. Most Indian states have leaned in favour of a scheme of local selection, but have qualified it by adopting the procedure of indirect elections (the Report cited in Note 12). The West Bengal Act is not however typical of these schemes since it adopts a hybrid procedure combining centralized nomination and local election. The first step involves the election of Nyaya Panchayat members by the representatives of Gram-Panchayats (Village Panchayats) who constitute a Panchayat circle (the Anchal Panchayat). The persons so selected have to be approved by the state governmental authority for the appointment to become effective.13 The Conciliation Boards Act also prescribed a scheme combining local selection and central appointment. Each community group in the locality, such as the Rural Development Society, is urged to nominate persons suitable for appointment as Board members.
The Minister of Justice in whom the ultimate power of selection is vested, is required to take these nominations into account in making the appointments.14Thirdly, we must draw attention to another substantive provision found in both legislations allowing settlements to be set aside within thirty days. In the Conciliation Boards, the parties notify the Chairman of the Board of their intention to repudiate,15 while in the Panchayats the intervention of a Judicial authority is necessary to set aside the determination.16
Notwithstanding the similarities that we have drawn attention to above, the differences between the two models are more striking. Firstly, there are jurisdictional differences in the two tribunals which point to their relative importance in the judicial systems of West Bengal and Ceylon respectively, and to the degree of commitment in each of these societies to the ideal of popular participation in judicial administration. While the civil jurisdiction of the Panchayats is limited by a monetary ceiling of 100 Rupees,17the competence of the Conciliation Boards to inquire into civil disputes which arise within their localities is unlimited.18 The criminal jurisdiction of the two tribunals is not, however, different. The enormous civil jurisdictional gap between the Conciliation Boards and the Panchayats is somewhat narrowed by the absence of sanctioning powers in the former. The Panchayats may on the other hand impose a fine up to 50 Rupees on a person found guilty of a criminal offence, and make awards in civil claims. They may not, however, impose a sentence of imprisonment. The jurisdictional sweep of the Conciliation Boards is such that lack of a sanctioning power would seem less significant. These factors seem to suggest that while the Conciliation Board was envisaged as being an improvement on and a viable alternative to the regular courts of law, the Panchayat was designed to be a minor tribunal with jurisdiction over petty disputes and offences.
From this perspective the Conciliation Boards Bill seems to reflect a much more radical commitment to the concept of popular justice than the West Bengal Nyaya Panchayats Act.Secondly, although as we noted that both tribunals enjoy the support and backing of the state in the exercise of their powers, there are important differences in the autonomy and discretion conceded to these bodies in determining the manner in which they should exercise their statutory powers. The West Bengal Act subjects the Panchayats to detailed regulation on how applications should be filed, summonses issued, inquiries conducted, and the sanctions and decrees enforced. It is further subject to the supervision and control of the regular courts of law.19 and its decisions may be set aside by such judicial authorities. The model is that of extreme centralized regulation and that of subordination to local judicial authorities. The Conciliation Board's model is an opposite one: once the tribunal is constituted it is given a great deal of leeway as to the procedure it should follow, and the rules of evidence it should comply with. Even the normative standards which the tribunal should apply are left open. In the act passed in 1958 there were no enforcement proceedings and no judicial or administrative body may intercede during a Conciliation Board's proceedings, nor set aside its determinations. The Ceylonese model, then, is that of extreme self-regulation.
Our discussion, while conceding some influences to the Panchayats scheme, leads us to conclude that the two tribunals represent fundamentally different models of conflict resolution. Such a conclusion will lead us to reject the suggestion that the Conciliation Boards represent the transposition of the Nyaya Panchayat model to the Ceylonese social milieu.