Access to Justice

The author in this post has discussed about the judicial system in India which shall ensure access to justice to everyone irrespective of any kind of discrimination. The author has also highlighted the rights of the citizens enshrined in the Constitution which makes it a fundamental right of the citizens.

In the absence of justice, what is sovereignty but an organized robbery

-St. Augustine


Justice is a principle that strives to achieve the idea of fairness and equity in terms of legal, societal, economical, ethical, and moral aspects. The Rule of Law is considered to be universally good but it seems to be incomplete without the Rule of Justice[1]. Access to justice is important in any society because it actually restores a sense of equal citizenship and humanity. It also helps in acknowledgment of existing sufferings and appreciates measures to prevent its recurrence. In India, access to justice is considered to be one of the topmost priorities as we find this principle enshrined in the Preamble of Indian Constitution which is actually a guide to the formation of all its provisions. The Preamble strives to achieve justice-​politically, socially as well as economically. But the unequal resource and income inequalities have led principles to remain on paper only for the indigent masses B.R. Ambedkar says,

Weare entering the era of one man one vote i.e, Political democracy, but social democracy seems to be still a goal not very easy to achieve.”

Ensuring access to justice


The constitution is founded upon the bedrock of balance between Fundamental Rights and Directive policies as was held in Minerva Mills Ltd. vs Union of India.[2] The constitution provides for legal enforcement of Fundamental Rights listed in the III part of the constitution and therefore inability to access justice is a violation of Art.14 which states the equality of all before the law as the indigent masses by virtue of their economic inability are unable to access justice. Article 21 asserts​the right to life and personal liberty except by the procedure established by the law. Right to hearing is an integral part of natural justice. It has been observed and re-observed by the apex court[3] that the accused must be provided with legal aid as the absence of it would also make the trial unfair and right to a fair trial has been held as one of the Fundamental rights[4].


Article 22(1) provides​that an accused must be given the reason for his detention and should be allowed a legal representative of his choice. The Court in Nandini Satpathy v. P.L. Dani[5] ​has substantiated this proposition.


Article 38 states that the state shall strive to promote the welfare of the people by securing and protecting as effectively as it may be a social order in which justice: social, economic and political shall inform all the institutions of national life.

Right to Legal Aid


Article 39A[6] provides for equal justice and free legal aid. It aims to facilitate equal opportunity in order to have equal justice and free legal aid. To make it more accessible, National Legal Service Authority Act,1987 was​ enacted and led to the formation of Lok adults and legal authority at center state as well as district level to facilitate free legal aid to the less privileged sections of the society. It was a good example of how the constitution-makers intended to consider the directive principles as the guiding principle for lawmaking. The pro bono legal assistance hugely impacted the lives of thousands of poor and illiterate people and brought their faith back.

Justice​ Bhagwati had declared that legal aid is really nothing else but equal justice in action.[7]

In fact, it is the delivery system of social justice.

Article 8 of​ the​ ​Universal Declaration of Human Rights states​ that everyone has the right or an effective remedy by the competent national tribunals for acts violating the Fundamental Rights granted by the Constitution or by law.

Article 14(3) of the International Covenant on Civil and Political Right advocates for legal assistance of one’s choice and without payments in cases required. Many other conventions such as the European Convention and many regional conventions also recognize such rights.

Right to Speedy Trial


Unlike India, the US recognizes the right to a speedy trial as a constitutionally guaranteed right. However, access to justice can be made more accessible if the trial progresses speedier, and therefore in a number of judgments, the courts have reiterated the right of speedy trial is intrinsic in Article 21 and is also a part of Fundamental Rights. In Hussainara Khatoon v. State of Bihar,[8] it was held that expeditious trial is a basic right under Art.21​ and cannot be trampled, delay in trial unnecessarily confers a right upon the accused to apply for bail. It became the basis for the concept of speedy trial. A similar instance was observed by Justice​ Bhagwati in Kadra Pahadiya v. State of Bihar[9] where​ he expressed dismal over the callousness of judges and lawyers who go on to cage people in jail for years without a trial.

Access to Justice a Fundamental Right


National​ Commission to Review the Working of The Constitution (NCRWC), constituted in the 50th year of Independence suggested that the access to justice shall be made a Fundamental Right under Article 30(A) namely- Access to Courts & Tribunals and Speedy Trial.

Relaxing the principle of Locus Standi


Judiciary has an instrumental role to play in transforming society and in the recent past has played a more proactive role by widening the principle of locus standi to facilitate and redress the grievances of public interest and importance. Dr.​ Upendra Baxi has rightly called PIL as Social Action Litigation.[10] Public ​Interest Litigation (PIL) has made the justice more accessible to the people who had neither means nor idea by the fact that any public-spirited person having no personal interest can approach the courts on their behalf. The courts are being flooded by a number of such PILs addressing some of the most important public needs and problems may be about gender justice, labor welfare, environmental protection, and many more which were earlier in the backyard. The case of Vishakha v.State of Rajasthan[11], which led to the enactment of a law to check sexual harassment at the workplace, Bandhua Mukti Morcha v. Union of India[12] which unequivocally advocated for the dignity of bonded labor. The case of Dehradun Dam Valley and M.C. Mehta[13] led to secure the rights of displaced people and related to check the environmental pollution of Delhi. The recent case of Sabarimala Temple entry[14] and Navtej Johar v. Union of India[15] ​and many more are classical examples of how it can be a boon to the social dynamics of the country.


Impediments for accessing justice


Having said that there has been a great advancement in the way justice was delivered earlier, it's quite important to look at the fact that we are still obstructed by a number of reasons which obstruct us to realize justice for all of us.

1. Mass poverty and illiteracy among the citizens make them unequal when it comes to access of justice for all. Also, the fact that there is rampant corruption which adds to the disadvantage of the poor.

2. Uncertainty with relation to the interpretation of laws makes it a corner for the lawyers and judges to have an edge over the common people and use it to their own interests. However the need for simple legal language is enunciated every now and then, but practically it has not been so easy and simple to understand for the common people. As a result, it makes justice less accessible for people.

3. Slow and sluggish rate on which the cases are disposed of in the country. As of April 2018, there are over three crore cases pending across the Supreme Court, the High Courts,

and the subordinate courts(including district courts). Of these, the subordinate courts account for over 86% pendency of cases[16].

4. The fewer number of courts in India also accounts for the delay in the justice delivery system. Also there are more than 5000 posts of judicial officers lying vacant in the lower courts across the country.

How can justice be made more accessible?


As under Article 130 of the Indian Constitution, the SC has the power to set up its benches in different states and the need for such expansion is the need of the hour as also have been highlighted by the law commission reports.[17]

The field of alternative dispute resolution (ADR) can play a major role in making the justice delivery system more accessible as it would reduce the burden of other courts. Strong legal aid system does not only play an important role in economically weaker sections of the society but it also renders economic benefits as it reduces the cost of litigation and further processes.

The overburdening of the SC today with a number of cases has reduced the constitutional and final court into another district court. This is mainly because of the role that the judges have to play both as the administration as well as the adjudicators. Streamlining the case management system by devolving the power of administration to a separate body can be a good step in this regard. Also, the use of technology and outside experts can help mitigate this problem.

Last but not the least, the role that the non-governmental organization and such voluntary organizations could play by being the course between the people and the justice system is immense. They play an important role to create awareness, sensitize the masses about their legal rights, and also bring them to the mainstream of the system.

Conclusion


Although there has been tremendous development towards the realization of our constitutional goals of achieving justice, yet there remains a lot to be achieved. Toquote Frost, “We have miles to go before we sleep''. There have been cases where personal interests have been served, also there have been cases that have gone against the general conscience of people. The case of Suresh Kaushal v. Naz Foundation[18] which overturned the decision of Delhi High Court was one such example. Moreover, a slew of measures such as more replicas of directive principles into the laws, policing reforms, autonomy to various statutory bodies, and commissions are needed in order to realize the massive ideal of “Rule of Justice.”


REFERENCES: [1] Notes and Comments: The March of Law in India- The Long Road from Oppression to Justice 59 JILI (2017)288 [2] (1980) 2 SCC 591; AIR 1980 SC 1789 [3] Mohd. Hussain@ Julfikar Ali v. State of (Govt. of NCT) [4] Upendra Baxi, “Taking suffering seriously: social action litigation in the supreme court in India” 4 Third World Legal Studies 107(1985) [5] 1978 AIR 1025 [6] Added by the 42nd Amendment Act, 1976, www.prsindia.org [7] National legal service authority v. Union of India (2014) 5 SCC 438 [8] AIR 1979 SC 1369 [9] AIR 1981 SC 939 [10] Upendra Baxi, “Taking suffering seriously: social action litigation in the supreme court in India” 4 Third World Legal Studies 107(1985) [11] (1997) 6 SCC 241; AIR 1997 SC 3011 [12] (1984) 3 SCC 161; AIR 1984 SC 802 [13] (2001) 3 SCC 756 [14] (2017) 10 SCC 689 [15] AIR 2018 SC 4321 [16] www.prsindia.org [17] 125th and 229th Report, Report of the Ministry of Law & Justice, GOI [18] (2014) 1 SCC 1; AIR 2014 SC 563.


Submitted by:

Siddharth Gautam,

Faculty of Law, University of Delhi


(Images used for representative purpose only)


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