For an outside observer, the controversies arising out of the introduction of the West Bengal pre-litigation conciliation board bill, 2004 are inexplicable and unfortunate. An otherwise welcome initiative in providing access to justice to rural litigants at the block level is today the victim of misguided propaganda and party politics. Instead of throwing out the baby with the bath water, the measure could be examined in content, and changes recommended in the provisions capable of inviting mischief. It is possible to redeem the instrument which the country desperately needs in order to address the unmet demands for legal services at the grassroots.

Bill No 9 of 2004 in the Statement of Objects and Reasons explains that it aims to settle disputes which have not yet reached the courts by providing a forum at the block level. It is upto the parties to decide whether they want to petition the block-level conciliation board seeking settlement of their disputes or file a litigation in appropriate court. The attractions are: a local forum, quicker decision, less cost, participatory methods and mutually acceptable settlement. Jurisdiction in civil cases is limited to matters not exceeding the value of Rs 1 lakh and to compoundable offences in criminal matters. Obviously small complaints against government departments which otherwise require travel to district or state headquarters can also get processed at the local level through the conciliation board. There is no jurisdiction if a court is in seisin of the dispute, or if the subject matter of the dispute falls outside the territorial jurisdiction of the block concerned.

Conciliation is not defined in the bill. It is understood as a third party intervention (in this case the conciliation board) in settling a dispute outside the courts. A “conciliator” is defined as a “person of integrity and repute residing within the area of the block whose name is included in the panel maintained by the Panchayat Samithi”. The conciliation board is constituted by the panchayat samiti. It is to be a three-member body with the conciliator acting as the chairman and a counsellor and a legal advisor as members. A counsellor is defined as one trained in counselling, engaged in social work and whose name is included in the panel maintained by the panchayat samiti.

Similarly, a legal advisor is defined as an advocate residing in the area and whose name is included in the panel maintained by the panchayat samiti. The panchayat samiti appoints the members, is empowered to remove them (subject to an appeal to the legal services authority), supervises the working of the board and controls the conciliation board fund. The panchayat samiti is immune to legal proceedings for anything done in good faith under the provisions of the act or any rules made thereunder.

Obviously the panchayat samiti, a politically elected body, is to be a key player under the conciliation board bill. Its powers are sought to be moderated by requiring consultation with the state legal services authority and the sub-divisional officer in preparing the panels of conciliators, counsellors and legal advisors. Does this role of the panchayat samitis militate against the impartial functioning of the conciliation boards? Would people of repute and integrity volunteer to function as members of the board? Would political considerations prevail in the choice of members, thereby undermining the credibility of the institution and the process of dispensation of justice?

These are legitimate concerns which need to be addressed while processing the bill in the assembly and its standing committee. As a body exercising quasi-judicial functions, it is better to employ a retired judicial officer settled in the area as the conciliator/chairman. Alternatively, the District Legal Services Authority, of which the district judge is the chairman, may be given the authority to constitute the panels and conciliation boards in the blocks within the district. Since the authority of the board depends on the credibility of its members among the people, it is important that the process of selection is not only kept above politics but also seen to be so by keeping the executive hand out of it.

To inspire the confidence of women, Dalits and other marginalized sections, the conciliation board must have at least one member from amongst them. It should be mandatory for the board to explain the process to the parties, clarify the rights and obligations under the law and provide alternative solutions which appear to be fair and closer to decisional law. This is important when parties are not represented by lawyers. The district legal aid committee should act as an ombudsman of conciliation boards to ensure the independence, fairness and rule of law in conciliation processes and settlements.

According to section 7, the secretary of the board, who is a low-paid officer of the block, is supposed to examine the application and decide whether it should be referred to pre-litigation conciliation. This is an invitation for corruption. It is better that the board or any member of it personally hears every applicant on appointed time and decides on action to be taken. The secretary is only to collect and register applications and give dates in consultation with the chairman of the board if there are too many to be handled on a given day.

The board after hearing the parties is to pass a resolution and accordingly prepare a conciliation report. The passing of the resolution requires interaction with parties and accommodation of their legitimate concerns. It is here that the counsellor and conciliator have to be proactive and people-friendly in their approaches and techniques.

Given the existing power relations in rural areas, it is prudent to allow parties to be represented by lawyers and to arrange for a legal aid lawyer when the party is indigent. However, a condition may be imposed that no case will be adjourned to suit the convenience of lawyers. There must be a provision compelling the revenue authorities, police, district administration and zilla parishad to cooperate with the conciliation boards and execute their obligations under settlements reached without delay.

Pre-litigation conciliation is part of legal aid as it enables access to justice without having to go for expensive, protracted litigation. The conciliation board is also supposed to explain the law to the parties and improve legal awareness of the people of the block which a regular court does not perform. This is indeed promotive of rule of law. If carefully managed it has the potential to contain avoidable litigation and promote village solidarity essential for development.

Decentralized governance through panchayati raj institutions under the 73rd constitutional amendment is incomplete without dispute resolution mechanisms also put in place at the grassroot level. The ideal situation would be the gram nyayalaya, consisting of a professional judge and two respected lay members of the locality hearing and deciding disputes in the villages through conciliatory methods quickly, fairly and efficiently.

A model in this regard is recommended by the Law Commission of India in its 142nd report. The conciliation board cannot be a substitute for Law Commission proposed gram nyayalaya, a first level multi-member court subordinate to the district court with all the powers of a civil court. Its special feature is it is a mobile court which hears and decides matters in the village where the event happened, procedures are less adversarial and more conciliatory and remedies are restitutive rather than punitive.

Conciliation, mediation and arbitration are now part of mainstream methods of dispute resolution in every country in the world. Section 89 of the amended Civil Procedure Code now mandates every court to employ them liberally in cases filed in courts. It is accepted widely by litigants in as much as Lok Adalats help settle thousands of cases every year pending for long years in court.

In the circumstance that the state constitutes another forum for conciliated settlements at the block level, it is to be welcomed. However it has to be structured as a fair, credible institution free from local politics and power struggles. The legal profession has a duty to give constructive support in the development of such a structure in the cause of justice to the poor.