"Ere the laws of human race began
When in the forest the noble tribal ran"
Chapter 5
Speedy Justice:
Unfulfilled Aspirations
"A
Hillman would much sooner walk into a Tiger's den
than put in an appearance in the Rajahmundry
Court"
-
H.E.Sullivan
cheduled Areas, special laws and simplified procedures
were formed to render justice promptly to the tribal. These included conduction
of village courts, recourse to summary trail and permitting tribal folk to
present their cases before Courts by themselves etc.
Officers of the Revenue Department, of the rank of
Revenue Divisional Officer or Sub‑Collector man Courts in Scheduled
Areas. Their principal function is the discharge of responsibilities as Revenue
Officers. Work associated with their
duties as Executive Magistrates is always secondary to the demands of the
principal function.
The Andhra Pradesh Scheduled Areas Land
Transfer Rules, 1969, states:
"no party shall be entitled to be
represented by a legal practitioner before any Officer or authority in any
proceedings under these Rules without the previous permission in writing of
Agent."
Despite this, the attendance of
lawyers in such Courts have led to prolonged proceedings and the complication
of fundamentally uncomplicated issues.
In 1990, the Government of Andhra Pradesh
appointed Mobile Sub-Divisional Magistrates exclusively for Magisterial
work. From the timing of the maneuver,
many in the area presumed this was done mainly to counter the influence of People's
courts held by naxalites.
Unfortunately, while the infrastructure was created, Assistant Police
Prosecutors (APPs) were not commissioned to attend to such Courts. Lacking the
APPs, criminal cases could not be disposed off quickly.
These
Magistrates or their clerks routinely question to the tribal whether or not
they have engaged a counsel to represent them. Most often, the tribal
petitioner, or respondent as the case may be, gets nervous and is unable to
argue his own case. The appointment of
lawyers by the ITDA to legal aid schemes is counter productive. The ITDA can educate tribals about Courts and
Court procedures so as to empower them.
Furthermore, such magistrates support lawyers by questioning tribals whether
or not they have engaged a lawyer, even in cases where Rule 45 is applicable
and in cases of self bail, identification of persons, etc.
While lawyers do have the right to
practice their profession, the needs of poor tribal living in remote areas
cannot be subordinated to the expedience of such professions. When the agony faced
by the tribal in Courts is publicized, lawyers went on protest.
Agency Courts respond positively to lawyers as opposed to their poor response
to the tribal. Case being argued by
tribals take longer to get listed, whereas when a lawyer is involved, listings
are accelerated. Once listed, lawyers loose all interest in the matter due to
their legal commitments in other Courts or financial interests. This leads to
virtual lawyers monopoly over agency Courts and their process. Agents often issued Sanads, blanket permits, that authorize a lawyer to appear in any
case without seeking 'permission'.
Agency Courts need procedures to preclude unequal representation in
cases where one party engages a lawyer, and the other does not. Procedures for handing over of such cases to
village courts need to be evolved, while parallel strengthening village- level
conflict resolution mechanisms and family counseling centers supported by
police stations (with women staff).
Unfortunately, the police have remained apathetic to women who come
forward to report cases of desertion by husbands.
When tribal women approached the Court
for maintenance under Section 125 (Section 488 in the old CrPC) of the Criminal
Procedure Code (Cr.PC), they are subjected to public humiliation.
In one case, over 30 adjournments were
granted although the case had been remanded for fresh trial by the High Court. The complainant (a tribal woman, Vempa
Gangamma, of Irlapally village of Rampachodavaram Mandal, claiming maintenance
from her husband Redlam Satyanarayana, of Gokavarm village, a non-tribal petty
fuel wood contractor, who abandoned Gangamma and her blind child) became
overwrought and gave up (the case) to escape the humiliation and the
trivialization of her suffering. Her lawyer, in her original affidavit claiming
maintenance for herself and her blind child, had incorrectly mentioned that she
was a concubine. The notion of a
concubine does not exist in tribal society.
It is concept in Hindu Society and figures in the Hindu Marriage Act, which, is not applicable to Scheduled
Tribes. Gangamma had to pay the price of not only
wrongly being labeled a concubine, but also of losing the right to maintenance
due to defective drafting by her lawyer.
Please see organisation
charts: c:\sundardocuments\chapter_5plats.ppt
Neither the Sub Divisional Magistrate's
Court, nor the District Court bothered to suggest rectification of the
affidavit. Though the Sub-Divisional Magistrate passed a decree of maintenance,
the Sessions Judge applied the Hindu Marriage Act and dismissed the case. The High Court too did not go into the matter
to provide justice. It remanded the case
to the lower Court to decide paternity of the blind child for issuing a decree
of maintenance. It is in this matter, that the Magistrate
adjourned the case over 30 times.
Gangamma has given up in despair.
Magistrates have also often dismissed cases for mere default. Unscrupulous lawyers too have not attempted
to plead their clients cases to prevent this.
Such
humiliating experience have demoralized many such unfortunate women who were
used and abandoned along with their children by non-tribals. They now are hesitant to approach the Courts.
When a NGO narrated such experiences of tribal women pleading their own cases
in a Telugu magazine, "Nalupu, " lawyers projected the matter as
contempt of Court and went on strike to pressurize the Magistrate to take
action against the organization,
but in vain. Despite the extensive provisions enabling quick disposal of cases,
these courts have failed to meet the ends for which they were created. The
Court officers, have, instead, bureaucratized the administration of justice in
even simple matters. Pakalapati Lakshmi
(a Kondareddi woman), of Maredumelli village, came into contact with one Pakalapati
Suryanarayana Raju, a petty contractor of the same village. While living with Lakshmi (through whom he
had two children) he married another non-tribal woman and abandoned Lakshmi and
the children. When Lakshmi filed a case
claiming maintenance from her husband, the Courts again used the provisions of
the Hindu Marriage Act (not applicable to the tribal!) to dismiss her case. She finally appealed to the High Court, the
Court admitted that the case was wrongly decided in lower Courts. The Court admitted that the case was wrongly
decided in lower Courts and wanted to remand it for fresh trial. At this stage,
Lakshmi made a plea for usage of the modern technique of DNA testing to decide
paternity.
A fresh trial would involve repeating the process all over and it would take
years, while she and her children continue to suffer. The High Court solicited the services of the
Centre for Cellular and Molecular Biology (CCMB) at Hyderabad for enabling such
a test. Unfortunately CCMB expressed its
inability to conduct such tests, claiming its primary research would suffer. CCMB added that it had asked the Government
of India to commission a separate Centre to meet such demands. Since the Government of India displayed
lukewarm interest in forming such a Centre, Lakshmi was forced to approach the
Supreme Court. Meanwhile, Lakshmi like the many hundreds of
similarly placed women, continued to carry the burden of bringing up two young
children all by herself. A question raised by a member of the Legislative
Assembly on the floor of the house regarding the plight of such women received
scant attention. The institutions and the Constitutional
framework provided by the authorities, charged with ensuring "peace and
good in the tribal lands" remain blind to the sufferings of such women.
The
Notified Tribal Area Rules of 1949 (of the former Hyderabad State) empowered
village Panchayats (constituted under these Rules to summon witnesses and
accused persons) to decide certain civil and criminal cases. After the formation of Andhra Pradesh, new
Rules (as applicable in the Madras Presidency areas) superseding these
excellent Rules came into force.
Under the new Rules, all cases were to be decided by Executive or Munsif
Magistrates.
In the interest of providing speedy
justice to the tribal, it is essential to revert to the earlier Rules of 1949.
These Rules overcome many hurdles. It makes justice easily accessible to people
through a village Panchayat, where all know the facts and circumstances Aggrieved parties always have the right to
appeal to formal Courts. The alternative selected by the Government was to rely
on Mobile Courts (involving heavy expenditure on vans and infrastructure) which
do not venture beyond Mandal headquarters'. The Tribal Welfare Department,
which funds these Mobile Courts has not educated Magistrates through regular
training and reviews to attain the objectives of speedy justice in tribal
areas. While they are unable to conduct
such training and monitoring, the personal executive courts - the department -
has to raise its hands in despair when a independent judiciary is introduced.
Further, to suit the convenience of professional
lawyers, the tribal are often forced to travel to the Courts. He incurs
expenditure, forego productive work and enter an unfamiliar environment. They
then faces Court jargon and endless adjournments, while summary trial is
supposedly the objective of the Agency courts.
The lack of speedy justice yet another reason for the tribal to feel
bitter and deprived.
The
Government lacks a sense of urgency, even at the highest levels, to
understand the alienation, frustration and bitterness the tribal feel. Often, justice rendered by the tribal among
themselves is more satisfactory than the impersonal orders of a person
distanced from them culturally and socially.
It is too much to expect of tribal to understand the nuances of law,
Court procedures and Orders. Nevertheless, they need information about his
rights, the compensation he can get and punishment to offenders so that any
compromise negotiated does not benefit or favor of the guilty. There is an urgent need to revive, and where
necessary, institute processes such as family courts, consumer councils and
other modalities to render justice to Scheduled Tribes. These process need to
be kept free from lawyers and formal legal practices.
In 1991, the Tribal Welfare Department attempted to
document traditional tribal justice systems, at the instance of the Governor.
While it appears that the Department prepared a report, the Governor, with his
formidable and proven skills of inaction, ignored it.
The Mobile Magistrate of Rampachodavaram
has no jurisdiction over matters under the LTR (the appellate authority under
the LTR is the Agent, i.e., the Collector). In August 1994, in a case where
land hand been handed over to tribals, the Magistrate took it upon himself to
entertain a complaint by these non‑tribals. He passed ultra vires orders to dispossess the
tribal of the land. The Assistant Collector, Rampachodavaram,
realizing the gravity of the matter, complained to the Agent, who stayed the
operation of the ultra vires orders
passed by the Magistrate.
However the Magistrate's orders (to dispossess the tribal) had already been
implemented by the MRO. The situation took an ugly turn, with the non-tribals
refusing to vacate the land, claiming that the Agent's Orders had become
infructous. The tribal, who had waited
for five years to occupy the land allotted to them, felt betrayed. It was beyond their comprehension, how the
same machinery that had taken so long to hand over land to them, could
immediately carry out unlawful orders passed by the Magistrate. A serious law
and order situation resulted, leading to the imposition of restraint Orders
(under which the land is vested with the Mandal Revenue Officer, any harvest
auctioned and the proceeds deposited with Government, to be handed over to the
party deemed to be the legal owner) to contain the tense situation.
The non-tribals then approached the High Court and obtained Orders staying the
Orders of the Agent. At this stage, an NGO intervened and placed
the facts before the High Court, speaking for the tribal.
The High Court vacated its earlier Stay Orders, subsequently, the Agent too,
allowed the tribals' petition against the Magistrate's orders. The non-tribals
moved the High Court and once again, obtained a stay. The implicated tribals
have been forced to the Courts continually for over five years. A similar
situation arose when it was found that two tribal held pattas
to the same land. The Magistrates conclusions in the matter accentuated the
chaotic situation further. This case is an example of how litigation and agency
courts harm the tribal. It also illustrates how appellate authorities pass
routine orders without checking the misuse of power by lower courts and
officials.
At a meeting of the Lok Adalat conducted by the District Judge at Rampachodavaram,
the NGO raised the issue of problems the tribal face in the local Courts due to
improper conduct of proceedings (see Appendices to this Chapter.
A newspaper subsequently reported these
issues. The Magistrate then issued a Notice to the
concerned reporter, threatening action against him.
The reporter filed a counter sticking to his story.
Many road accidents involving overloaded
lorries belonging to the Andhra Pradesh Paper mills Ltd., Forest Department,
etc. occur. The deceased/injured are
usually poor tribal folk who travel in such lorries. Due to their ignorance, the injured or the
relatives of the deceased are unable to claim compensation under the Motor
Vehicles Act. In some such cases,
unscrupulous intermediaries have taken signatures/thumb impressions from
claimants and have obtained compensation.
The Rampachodavaram agency has three
Magistrates at Division level: Additional District Magistrate (Project Officer,
ITDA), Sub-Divisional Magistrate, and Sub-Divisional Mobile Magistrate. In addition, to the SDC (Tribal Welfare), 7
mandal Executive magistrates are also present.
In cases of emergency such as the land problem in Devipatnam mandal
during June-August 1996, the three Magistrates and the SDC were deployed as
authorities under LTR to dispose the cases.
The presence of all these judicial officers makes it easy to check
police excesses on tribals and cases of cheating by mischevious elements. For example, even Executive Magistrates at
mandal level are empowered to check the enforcement of minimum wages, to check
weights and measures, and to take depositions from aggrieved victims and refer
matter for enquiry to the police.
Unfortunately, these remain unchecked.
The Magistrates lack spontaneity, direction and leadership to ensure the
rule of law.
Some lawyers associated with
non-governmental organizations are using media propaganda to try to induce
introduction of the new CrPC, and by that the judiciary, to promote their
practice in Agency Areas. These are the
lawyers who take up cases of non-tribals.
They attribute the dismissal of
tribal' petitions to the provisions of the old CrPC and non codification of
tribal customs, the style of functioning of agency courts. These suggestions do
not hold water, as the IPC
and its penal provisions are applicable even where the old CrPC is in force,
and as such, there is no need to impose the new CrPC in Agency areas. Despite these conflicting stands taken by
various lawyers, the ITDA proceeded to induct them into their legal aid scheme. The Agent and Collector rather than fulfill
his responsibilities of monitoring the functioning of these Courts, has
proceeded to institute legal aid committees, which take up the services of more
and more lawyers.
The lower courts are supported by funds
from the Tribal Welfare Department. The
Department should analyze the functioning and performance of lower courts and
authorities connected with agency areas and tribal issues. Subsequent corrective measures combined with
judicious monitoring and transparent reporting of the status of cases in annual
reports, notice boards etc. will also contribute substantively and positively
to the process of rendering speedy justice.
Pendency of various cases and the reasons thereof such as the absence of
police, APP, clients, lawyers or magistrates need to be ascertained and made
public.
Rule 57 of the
Agency Rules states:
"
The Agent shall submit to the High Court in such form and on such dates as the
High Court may direct, statement of business done by him, by Agency Divisional
Officer or Agency Munsif"
Such mechanisms have never been
used. It is high time that these are
looked into and used effectively. We have set up family courts, consumer courts
etc. to meet the growing demands of the
public, but, we remain apathetic to the issue of providing quick justice to the
weaker sections who are illiterates. Moreover, we have reversed the provisions
of the 1949 Regulations which allow Panchayats to try petty offences. The Provisions of the Panchayats (Extension
to the Scheduled Areas) Act, 1996 requires legislations regarding Panchayats to
be in consonance with customary laws; the Constitution too ensures this. Nonetheless, in implementation, we are
capably of throwing the poor into the maze of litigation and the nightmare of
'rule of law'. In sum, we stand at
crossroads. It would not be in
appropriate to ask ourselves - Whither Justice? Mainstream or Customary? -
Tribal laws are obscure and unintelligible.
Most of the tribals have no written language. Even the various customs prevailing in
various tribes were not chronicled.
To quote Levistrauss, ".......there were lots of rules of the marriage all over
the world, which look absolutely meaningless and it was irritating because, if
they were meaningless, then there should be different rules for each people,
though nevertheless the number of rules could be more or less finite. So if the same absurdity was found to
reappear over and over again, and another kind of absurdity also reappears,
then this was something that was not absolutely absurd, otherwise it would not
appear."
The recent resurgence of the importance of customary laws reflect this. True democracy existed in tribal societies,
whereas we have reduced democracy to a insane mass of paper and
procedures.......
Appendix 1
Comparison of
features of Telangana and Andhra Rules
Telangana
|
Andhra
|
|
Rule 4: The Agent shall be competent to appoint
such person or persons as he considers desirable to be members of a Panchayat
for such village or villages as he may specify and entrust to such Panchayat
any or all of the duties specified in these Rules
|
5. (2) Suits cognizable by an Agency Munsiff
shall be instituted only in the Court of Agency Munsiff having jurisdiction
|
|
Rule 8: The Panchayat shall decide all cases in open Durbar in the
presence of both parties and at least three independent witness
|
|
|
Rule 10: No legal practitioner shall be allowed
to appear in any case before the Panchayat
|
|
|
Rule 29: All the proceedings shall be viva voce and the Panchayat shall not
be called upon to make either record or registry of their decision. After hearing both parties, and their
witnesses, if any they shall pronounce a decision forthwith.
|
|
|
Rule 32: Agent and Assistant Agent shall not
ordinarily hear suits triable by the Panchayat but they shall have discretion
to do so when they think right.
|
|
|
Agency Rules and Related Events
|
|
1924
|
Rules
were framed
|
|
1949
|
Rules
formed (Telangana)
|
|
1963
|
1959
Rules replace 1949 Rules
|
|
1974
|
Old
CrPC continued
|
|
1990
|
Mobile
Sub-Divisional Magistrates appointed
|
Appendix 2
Provisions of
the Panchayat (Extension the Scheduled Areas) Act, 1996
Section 4. a) a State legislation on the Panchayats that may be
made shall be in consonance with the customary law, social and religious
practices and traditional management practices of community resources.
Section 4. d) every Gram
Sabha shall be competent to safeguard and preserve the traditions and customs
of the people, their cultural identity, community resources and the customary
mode of dispute resolution.
Appendix 3
Ref B 18/93 Dated 12.3.93 Mobile Court, R.Chodavaram
SHOW CAUSE NOTICE
Sub: News Item Published in Andhra Jyothi
Daily, Dated 10.3.93 - Explanation - Called for
Ref: Andhra Jyothi East Godavari Edition
Dt.10.3.1993 with date line Rampachodavaram Unit.
><><
You are hereby called upon to appear
before the undersigned on 31.3.93 at 11.00 AM to answer the following
allegations made by you in Andhra Jyothi Telugu daily newspaper in East
Godavari edition on 10.3.93 under caption Idi 'Turup' Agency Sanchara Nyayam
Kadha with Rampachodavaram dateline.
1.
That
the clerks of the court, adjoining the cases without the knowledge of the
Magistrate.
2.
That
the court is causing inconvenience and doing injustice to the tribals.
3.
That
the cases were adjourned without the examination of witnesses though they were
produced by the parties.
4.
That
the cases are adjourned due to non availability of A.P.P. and allegation that
there are no days fixed for appearance of A.P.P.
5.
That
the court is not being held in the Central Jail, Rajahmundry.
6. You are also called upon to offer your
explanation with regard to the publication of some news touching the case of
one Vempa Gangamma which is still pending in the court and therefore sub judice
before this court. You have also made
some comments on the judgments already delivered by the court without any basis
which amounts to contempt of the court.
You
are also called upon to furnish explanation on this item of news published by
you, which is touching the interest of administration of Justice.
Sd/-
Sub Divisional Magistrate.
Mobile
Court, R.Chodavaram
East
Godavari
To
1.
Reporter
: Sri B.Satyanarayana
Spot news
Reporter
Andhra Jyothi,
R.Chodavaram
Copy to Sri K.Jagadish Prasad, Printer
& Publisher, Andhra Printers Ltd., Vijayawada - 520010 for information and
to take necessary action on persons responsible for issuing false news. The
action taken may be informed to this court early.
Copy to News Editor,
Andhra Jyothi daily newspaper, Vijayawada 520010 for necessary action
Copy submitted to the Collector and
District Magistrate, East Godavari, Kakinada for favor of information
Appendix 5
To
NAFISH 'D' SOUZA
LAYA
VISHAKAPATNAM
Respected Madam,
I am Mr. Satya Prasad, Advocate Legal Retainer of your
organization at Resource for Legal Action, Rampachodavaram.
I joined in Laya with the interest of
extending my services for the cause of assisting tribals in legal matters
related with land and women maintenance for which LAYA has a great concern.
As the present situation at R.L.A.
R.Chodavaram is not in tune with the Laya's fundamental interests and even
sometimes against them, I find it obligatory on my part to bring them to your
notice for proper evaluation which might have been remained unnoticed or left
in dark so far.
I am herewith bringing some
instances of mishandling of legal claims, defending male accused in the Tribal
& non-tribal women exploitation cases, false accusations of our working
personnel and harassment to your notice which are significant to evaluate the
line of activities presently going on at R.L.A. Rampachodavaram.
1. In one of the cases related to Gangavaram
mandal. Last month I was forced by
R.L.A. Head to file vakalat against tribals (in favour of 30 non-tribals, with
a threat of discontinuing me from R.L.A. services). In which 30 acres of tribal land is falsely
claimed by 30 non-tribals.
2. In one of the legal claims of Eluri
Venkata Satya Kumari, in a case of interim maintenance, R.L.A. Head personally
received the maintenance amount of Rs.1500/- from the respondent in open court
in the absence of the petitioner in mid 1994.
So far the petitioner was only paid partially Rs.500/- in the mid of
1995 (almost after one year ) after terrific pressure from the petitioner's
community. Till to-day balance amount is
remain unpaid.
3. In another case of land dispute between a
Tribal women and non-tribal man of Gangavaram mandal, R.L.A. Head took the position of defending
non-tribal against tribal women, Kunjam
Laxmi, which is in violation of Laya's objectives. This instance is noted by the P.O., ITDA in
the court record.
4. In a recent case (C.C.69/96) of Cheating
and Sexual exploitation of Tribal female by non-tribal male accused viz.,
Komali Kutumba Rao of Devipatnam by taking Bail in favor of the accused and
arguing his case.
5. In Rajavomangi Mandal, Surapalem village,
Pusam Samidora case, in R.L.A. letterhead, sent representation to District
Collector by the R.L.A. Head for implementation of LTRP order. For this District Collector sent message to
SDC (TW, R.Chodavaram) and S.D.C. made order and it was posted to M.R.O.
Rajavomangi and one copy was sent to R.L.A. Head and he received
personally. He knows very well about
that court order.
6. R.L.A. Head presently took-up two
maintenance cases in favour of respondents viz., M.C.1/96 and 2/96 against
women petitioners before S.D.M. Court, Rampachodavaram, In MC-1/94 he argued
for J.M.H.Murali Mohana Rao, Teacher Respondent, against P.Rajeshwri,
Kothapalli, Petitioner. Later he won the
case for the Respondent and the Petition was dismissed by the by the court.
As the present conditions are not only
against the values and interests of LAYA, but also hurting the spirit of my
values and feelings, I find it difficult to continue my present work at R.L.A.,
Rampachodavaram, unless necessary effort is made to rectify the present
situation.
Yours sincerely,
(K.SATYA PRASAD)
Station:
Rampchodavaram,
Date:
06-05-1996
From
Kola
Satya Prasad
Advocate,
Rampachodavaram
Pin:
533 288
Ph:
43682 (08864)
Appendix 6
Issues Raised
by SAKTI at Lok Adalat Meeting of 20.12.1992
1. Adjournments posted before the court
clerk without the Magistrate by that denying an opportunity to victims to get
interim relief and bringing any problems to the notice of the court.
2. Adjournment being taken up in this manner
at the end of day.
3. Wrong application of law such as applying
the Hindu Marriage Act in deciding maintenance cases of tribal women
petitioners
4. Dismissal of cases filed by the tribal on
frivolous technical grounds such as late arrival of tribal petitioners. (Mrs.Kotikalapudi Venkatarathnam, of
Yellavaram village, Addateegala mandal).
5. Delay in issue of notice, up to six
months:
See Vidya Prasad, N.,
Additional District and Sessions Judge, Social
Justice to Tribals in Scheduled Tribes
and Social Justice, Andhra Pradesh Judicial Academy, Secunderabad, 1996.
See Nalupu, (Telugu fortnightly magazine), 16 May 1990 issue. Also see Appendix Tribal Women Cheated by Law", SAKTI 1990, Also see the judgment of the Sub Divisional
Mobile Magistrate, Rampachodavarm in MC No.15/89., Dukkara Veerayamma and ors v.
Dukkara Saibabu. The case involved a maintenance claim by a tribal
women for herself and her two children, from the respondent, who had married
her and subsequently, after a period of
8 years, deserted her for another woman.
She sought a maintenance of Rs.500 for herself and a similar sum for her
children. The respondent averred that he
had not actually married her, that she was only a concubine, and sought to
application of the provisions of the Hindu Marriage Act. He did not however deny, that the children were
indeed theirs. In this judgment, the
Mobile SDM has shown deep insight of tribal customs and concluded that that since
tribal areas and customs are special, because of which it was not strictly
correct to apply the Hindu Marriage Act, and that an act of living together by
two tribals in a tribal area can be construed as an act of marriage. He ordered compensation to be paid at the
rate of Rs.200 for the petitioner, and Rs.100 each for the children, in
consideration of the respondents plea that he was a coolie and had no other
means to pay the sought compensation.
Also see M.C.No.8/94, Patharla Buramma v. Edara
Peddaraju, Sub Divisional Mobile Magistrate's Court, Rampachodavarm. The petition was dismissed on frivolous
technical grounds.
The Supreme Court, in a case relating to the Naga
Hills District of Nagaland (in AIR 1967 SC
212) observed:
"Laws of this kind are made with an eye to
simplicity. People in backward tracts
cannot be expected to make themselves aware of the technicalities of a complex
Code. What is important is that they
should be able to present their defense effectively unhampered by the
technicalities of complex laws.
Throughout the past century, the Criminal Procedure Code has been
excluded from this area because it will be too difficult to for the local
people to understand it. Instead, the
spirit of the Criminal Procedure Code has been asked to be applied so that
justice may not fail because of some technicality. The argument that this is no law is not
correct. Written law is nothing more
than a control of discretion. The more there
is of law, the less there is of discretion.
In this area, it is considered necessary that discretion should have
greater play than technical rules and the provision that the spirit of the code
should apply is a law conceived in the
best interest of the people. The
discretion of the Presiding Officer is not subjected to rigid control because
of the unsatisfactory state of defenses which would be offered and which might
fail if they did not comply with some technical rule. The removal of technicalities, in our
opinion, leads to the advancement of the cause of justice in these backward
tracts. On the other hand, the
imposition of the Code of Criminal Procedure Criminal Procedure would retard
justice in these backward tracts. On the
other hand, the imposition of the Code of Criminal Procedure would ratard
justice, as indeed the Governor General, the Governor and other heads of local
Government have always thought. We think
therefore, that Article 21 does not render the rule of 1937
ineffective.................. . These backward tracts are not found suitable
for the application of Criminal Procedure in all its rigor and technicality,
and to say that they shall be governed, not by the technical rules of the Code,
but the substance of such rules is not to discriminate this area against the
rest of India.......................... In a backward tract, the accused is not
in a position to defend himself meticulously according to a complex Code. It is therefore, necessary to leave the Judge
free so that he may mould his proceedings to suit the situation and may be able
to apply the essential rules on which our administration of justice is based
untrammeled by any technical rule, unless that rule is essential to further the
cause of justice................ . The
rules of 1937 were designed fro an extremely simple and unsophisticated society
and approximate to the rules of natural justice."
The petitioner, Pathara Buramma is a tribal women of
Ozubanda village of Gangavaram Mandal.
She filed a petition against her husband seeking maintenance for herself
and her children. On 1.4.1994, The Mobile SDM granted her an interim award
of Rs.400/- towards maintenance. The
interim maintenance award was quashed by the II Additional Magistrate Court in
apeal No.M.C.11/95 filed by her husband on the technical grounds that the
petitioner had not filed any application for intrim maintenance and the fact
that proper witnesses were not produced in the lower court, and Buramma could
not prove her marriage to the respondent as the provisions of the Hindu
Marriage Act were invoked. The
respondent also managed to get adjournments on occasions when Buramma was able
to bring witnesses. The use technical
ground that she had not filed a specific special affidavit seeking interim
relief is essentially incorrect, as she had mentioned her dire straits and the
fact that she was almost in starvation in her petition. This should have been construed as being a
application for interim relief. The
respondent, in his conter, had made false allegations that she had several
illicit relationships. Her lawyer did
not make any attempt whatsoever to deny these allegations nor took any interest
to produce the facts before the Courts.
See Criminal Revision
Case No.183 of 1990, High Court of Andhra Pradesh
It
will interesting to note that the lawyers have never raised similar protests or
have gone on strike when the Magistrate conducted late evening Courts or did
not attend Court on the pretext of other "official work." The magistrate issued notice to press
reporters.
See MC 6/88 dated
31.7.1989 before SDM, Rampachodavarm, and Revision Petition 97/89 before 2nd
Additional Sessions Judge, dated 25.7.1990.
Also see Criminal Petition No.549 of 1993, High Court of Andhra Pradesh.
See Criminal
Miscellaneous Petition No.1782 of 1993 in No. 549 of 1993, High Court of Andhra
Pradesh.
While the Courts used
the provisions of the Hindu Marriage Act to dismiss the cases of these tribal
women, in another instance, the declaration filed by a tribal under the A.P. Land
Reforms (Ceiling on Agricultural Holdings) Act, 1973 was dismissed since "the
tribal cannot be treated as a Hindu and they cannot be held to have joint
family property, the entire land is computed under the holding of the father
only, and 4/5ths of the land was ordered to be surplus." See Scheduled Tribes and Social Justice, 1996, A.P. Judicial
Academy at p.234
See 'Hitch in Accord Hits
Schemes' and 'Concubine Embarasses Minister' in Indian Express, Hyderabad, of
7.10.90
Andhra
Pradesh Scheduled Areas Land Transfer Regulation 1 of 1959
For an detailed account
of such practices, see Sharma, B.D.Bailadilla
Adavullo Daga Padda Chellellu, published in Telugu, Hyderabad Book Trust.
See O.S.7/93 dated
13.4.1994, Sub Divisional Mobile magistrate, Maganti Devullu v. Ganta Ganga
& Ors.
See I.A. ¼ Assistant
Collector v. Maganti Devullu and Sub Divisional Mobile
magistrate ( in the Court of
Agent to Government)
see I.A. No.8/1993
in O.S. No.7/93 of Sub divisional Mobile Magistrate's Court,
Rampachodavaram
See S.A.No.428/95
Civil Miscellaneous Petition No.10974 of 1995
Kunjam Laxmi v. Chukka Ananda Rao,
OS No.3/93 of Sub Divisional Mobile Magistrate, Rampachodavarm. In both the cases, the Court did not insist
on petitioners timplead the LTR authorities and Mandal Revenue authorities and
passed orders behind their backs. The
Revenue Department also ignores these proceedings under the excuse that they
are sub judice. This brings to the fore the conclusion that
the Collector is not prevailing upon the authorities under his control.
The Hindu, 23.12.1992,
400 Tribals Under TADA Without Hope of
Release. "More than 400 tribals were
being incarcerated under the provisions of TADA (Terrorists and Destructive
Activities Prevention Act) for the last several months without any hope of
being released. The number of tribal
women deceived by plains people is more than the number of land dispute
cases. A lion's share of the
compensation paids to tribals in various motor vehicles cases is being knocked
away by middlemen leaving the kin of the victim with a paltry amount." The report covered the speeches of the
participants of the Lok Adalat meeting conducted on 20.12.1992 at
Rampachodavarm.
See Andhra Jyoti Telugu
Daily of 10.3.1993
On 12.3.1993 vide Letter
ref.B18/93, Mobile Court, Rampachodavarm to DSP, Rampachodavaram.
SAKTI has been asking
the Government (through General Administration Department) to ensure that the
money due to the claimants reaches them by routing it through the Project
Officer, ITDA.
See
D.O.Ref (B) 61/90, letter dated 16.1.1990 from Sub Divisional Magistrate,
Rampachodavarm to Sub Divisional Police Officer, Rampachodavarm, regarding
payment of compensation under Motor Vehicles Act, 1988 and calling for details
of accidents and injured/deceased etc.
This letter was not responded to.
SAKTI has also been asking the Government to
compensate victims of attacks by wildlife through the project officer.
for a substantiation of
this, see Order of the Andhra Pradesh High Court in Criminal Petition No. 3401
of 1993, Sunkara Raghava and Others v. State of Andhra Pradesh. Also see Scheduled
Tribes and Social Justice, 1996 AP Judicial Academy at p.123. Also see Justice:
A Far Cry for Tribal Women in Indian
Express of 8.1.1994 and Tribal Women
Exploited, Indian Express, 11.8.1993.
Also see, Trinadha Rao, P., Policy
in Wilderness : A Glimpse into tribal life and Governance in Agency areas. In these cases of family disputes leading
to maintenance claims etc., all parties involved, i.e., the lawyer, the Court,
and the clients should try to reconcile the estranged couple. But here, the lawyer has filed the case while
the couple have developed bitterness since few months. The lawyer cum reporter started giving
publicity to the case thereby further aggravating the situation. The husband admitted the contention of the
wife and is paying maintenance as per court orders. In another instance, the same lawyer, went in
search of a police station in a issue involving a on behalf of his client, a
non-tribal man accused of molesting a tribal girl. On being abused by the police, the lawyer
raised a hue and cry. In the ensuing
exchange, the tribal girls case was forgotten altogether. This raises doubts as to the double standards
of such professionals, as to whether they act in favour of those they profess
to represent, or seek self-glorification as saviors of tribals.
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