Access to Justice- New Challenges

“Access to justice” in its general term, means that individual’s access to court or a guarantee of legal representation. It has many fundamental elements such as identification and recognition of grievance, awareness and legal advice or assistance, accessibility to court or claim for relief, adjudication of grievance, enforcement of relief, of course this may be the ultimate goal of a litigant public.

The concept of ‘access to justice’ has two significant components. First is a strong and effective legal system with rights, enumerated and supported by substantive legislations. Other is a useful and accessible judicial/ remedial system easily available to the litigant public.

The Constitution of India is the living document of this Country and the basic law of this Nation. As disclosed in its preamble, it stands for securing justice to all the Citizens. In Article 39A, the Constitution retains its aspiration to secure and promote access to justice, in following terms

“  The State shall secure that the operations of the legal system promote justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”.

Access to justice is recognized as a prominent and fundamental right, in several international documents. In India, the National Commission to Review the Working of Constitution (NCRWC), constituted in the 50^th year of Independence, in its final report suggested for incorporation of this right as fundamental rights by incorporating Art.30 A, in the Constitution, in following terms, 

            30 A. Access to Courts and Tribunals and Speedy justice.- (1)  Everyone has a right to have any dispute that can be resolved by the application of law decided in fair public hearing before an independent court, or where appropriate, another independent and impartial tribunal or forum.

            (2).  The right to access to courts shall deemed to include the right to reasonably speedy and effective justice in all matters before the courts, tribunal or other for and state shall take all reasonable steps to achieve the said objectives.

The identification and recognition of one’s grievance has a direct co-relation to his right. This bundle of rights includes natural rights or basic and human rights, fundamental rights, other constitutional rights and statutory rights. 

Identification and protection of these rights, especially that of the poor and disadvantaged people must be the chief concern, while formulating the principles of access to justice.  

Apart from the Universal Declaration of Human Rights, the Constitution of India, guarantees, fundamental rights in its Part III, from Articles 14 to 32. This includes, right to equality, freedoms, right to life, religious rights, minority rights and finally the special right which guarantees constitutional remedies in cases of infringement of fundamental rights. Though these rights are not absolute, but protected under Article 13 of the Constitution, which expressly prohibits enacting of law inconsistent with or in derogation with fundamental rights. Additionally, any action abridging the fundamental rights are subject to inherent or implied limitation, as per the Doctrine of Basic Structure or Basic Features.

There are other sets of rights guaranteed as per the express provisions in the Statutes. Right of representation in elected bodies, right to maintenance, right to minimum wages, right to social security, right to vote are some of such rights. In India, there are number of statutes dealing with these special kinds of rights, such as Representation of Peoples Act, Minimum Wages Act, Provisions for Maintenance under Section 125 of the Code of Criminal Procedure, Social securities under Workmen’s Compensation Act, Industrial Disputes Act, Employee’s Provident Fund and Miscellaneous Provisions Act, Payment of Bonus Act, Payment of Gratuity Act, Employees State Insurance Act etc.

Our country is a secular ad democratic republic. Rights of different religious peoples and that of the minorities, linguistic or cultural, are protected under the Constitution itself. As well, the rights under the personal laws and customary rights were protected subject to the provisions of fundamental rights guaranteed in Part III of the Constitution of India. Such rights include the right of inheritance and succession, right to marry, right of performing religious rituals etc.    

The concept of access to justice, primarily, necessitates a potential system securing appropriate legal remedies within the Civil and Criminal justice fields. Judiciary, being an integral part and parcel of an effective judicial system, has a greater role in ensuring access to justice. As per V.R. Krishna Iyer, the prominent jurist of our Country and the former Judge of the Supreme Court of India, access to justice, which is fundamental in implementation of every human right, makes the judicial role pivotal to constitutional functionalism[1].

Administration of Justice, by judicial court system: In India, we have a chain of Court system, consists of Higher Judiciary and Sub-ordinate Judiciary. In the Higher judiciary, we follow a federal system consisting of Union Judiciary and State Judiciary, in such a way that a Supreme Court at the apex level[2] and High Courts in each States[3].

In the Subordinate Judiciary, we have a uniform hierarchy of criminal courts and civil courts, though it varies in State to State, in relation to nomenclature and jurisdictions. In the Civil side, we have City Civil Courts or Court of Munsiff, Court of Sub-ordinate Judges and Court of District Judge, established as per the provisions of Civil Courts Act. In the criminal justice field, there are Judicial Magistrates Courts and Sessions Court to deal with the offences under the Indian Penal Code and other Special Criminal Statutes. The High Courts in the States and Supreme Court of India are also major components of this hierarchy in Civil and Criminal justice system, as it holds the appellate and revisional jurisdictions over the sub-ordinate courts. 

Additionally, we have the system of establishing special courts to deal with the special kinds of litigations.  For adjudication of charges under the anti- corruption laws, there are Vigilance Tribunals, in every States.  For adjudicating the issues relates to taxation, there are Taxation Tribunals through out the Country, constituted as per various fiscal statutes, such as Income Tax Act, Central Excise Act, Sales Tax Act etc. For adjudicating the issues arising out of family and matrimonial relations, there are Family Courts, established under the Family Court Act.  For resolving litigations between Industrialists and workers, there are special tribunals, such as Industrial Tribunals and Labour Courts.              

Which are the barriers to the access to justice?  Lack of awareness of justiciable problems and lack of sources and availability of advices, are the two major barriers to the access to justice. However in countries like India, the financial burden of the litigation is also a major factor. The United Nations Development Programme in its Note on Access to Justice, published in the year 2004, added two other factors namely, long delays in adjudications and excessive number of laws, as additional barriers to access to justice.  

Lack of awareness of legal rights, obligations etc., complexity in structures and processes in the judicial system and low rate of legally literacy are, of course, common in our country also. The people in this Country be short of access to appropriate and timely legal advice due to unaffordable expenditure involved in the process of litigations. However we have experimented solutions for this issues. We have enacted the Legal Services Authority Act, 1987 and as per the provisions of the said Act, we are providing free legal advice and legal services to the peoples having social and economic backwardness, women, children, industrial workers, victims of mass disasters and natural calamities[4]. There are Legal Services Authorities in National, State and District Level and Legal Services Committees at Supreme Court, High Courts and Taluk levels. The important aspect is that all these authorities and service committees are headed by the Judges and Judicial Officers and there is proper and timely evaluation on the performance of these forums, in intervals. 

Till an accused is found guilty, he is innocent, in the eye of law.  There are instances that the accused are not able to engage lawyers for defending the charges levelled against him. We have a system of appointing State- Briefs, a lawyer at the expenses of the State, in appropriate cases, when the concerned court is of the opinion that the accused is in need of a pleader for his defence at the State expenses[5]. 

Our experiences illustrates in civil litigations, such as disputes in relation to properties and ownerships, family and matrimonial relationships, commercial dealings etc, there is wide scope for settlement, by the involvement of a Judicial Officer or a social worker or a trained mediator or conciliator.  Delay in acquiring proper and timely relief is the paramount defect of the Court system and we have resolved this issue by providing a scheme for settlement, out side the Court. When a Court finds that there is an element of settlement in a litigation pending before the Court, our Civil Procedure Code, mandates the Court to formulate the terms of settlement and to refer the matter for settlement[6]. We have identified the process of Arbitration, Conciliation, Mediation and Settlement through the Special Agency, namely Lok Adalath, as the effective and speedy modes of alternative disputes resolutions. We have Lok Adalath, constituted and convened, in regular intervals in all the Court Stations. The Mediation Centres are now established in the High Courts and there is special committee in the Supreme Court of India to monitor the functions of Mediation Centres and also to facilitate service of trained Mediators.

The Arbitration and Conciliation Act, 1996, provides an excellent system of alternative dispute resolution by way of Arbitration[7] and Conciliation[8]. Now-a-days the litigations arising out of commercial dealings are resolving through Arbitration, either through the Tribunal either an Institutional Arbitration Tribunal or Individual Arbitrator/s. Modes of conciliation also has a greater role in resolving the disputes of civil and commercial nature, when the parties to the litigation agree for it.

Apart from these, the Legal Service Authorities are entrusted with the additional functions of legal awareness, among women, socially and educationally backward classes, industrial workers and including the school students. Legal literacy and legal awareness programmes are part of the syllabi in Law Schools in the country. There are number of Non- Governmental Organizations, attending the specific tasks of legal awareness and legal literacy among the poor and disadvantaged groups. Judges, Lawyers and Law Academicians have keen and pivotal role in implementing such literacy programmes.

Role of Parliament to promote access to justice:

Parliament of India is the supreme legislative body of this Country.  Access to justice can be fasten or strengthen by making use of legislative capacity of the Parliament, in better way.   The Legal Services Authorities Act, 1987, The Right to Information Act, 2005, the Gram Nyayalaya Act, 2008 are the major contributions of the Parliament in this regard.

Impropriety in investigation and prosecution is another barrier of access to justice. One of the major demerits of Indian criminal justice system is the involvement of foul plays in criminal investigations and involvement of political and communal bias in prosecution. Thus, compared to other countries the conviction rate in our country is below 40% of the total cases registered[9]. As per the provisions of Code of Criminal Procedure, police is the investigation agency and public prosecutors, appointed under Section 24 of the Code, are the state officers for the victims, took part in the enquiry and trial.

The Committee on Reforms of Criminal Justice -2003 (Justice Malimath Committee) submitted its report highlighting the basic problems of the criminal justice system. It was observed in the report that the important object of the criminal justice system is to ensure justice to the victims, yet he has not been given any substantial right, not event to participate in the criminal proceedings. Therefore the Committee suggested enabling continuation of prosecution by the legal representatives, if the victim is dead. The committee further suggested to grant the victim the right to be represented by an advocate of his choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer. The committee also supports reserving the right of appeal to victim, against the adverse orders passed by the Court and also for his entitlement of compensation, on completion of adjudication.

Now, by the Code of Criminal Procedure (Amendment) Act, 2008, introduced an amendment in Section 24 for the Code by inserting the proviso to enable victim to engage an advocate of his choice to assist the prosecution, on obtaining permission from the Court. This is another significant contribution of the parliament in strengthening the access to justice.         

Role of Higher Judiciary to promote access to justice.

 The Higher Judiciary, in India consists of Supreme Court and High Courts in States.  Complexity in the process and structure of our judicial system is one of the major barriers in strengthening the access to justice. To curb this situation, our courts are intensively promoting the special class of litigations, namely Public Interest Litigations. In the filed of writ jurisdiction, the higher judiciary in India widened the scope of locus standi principles, to enable the needy to exercise their right to access to judicial system.  Thus a litigation for public good can be initiated not only by an aggrieved person but also by a public spirited individual or social action group or by a suo motu action by the Court, for the enforcement of the constitutional or legal rights[10].  Public interest litigation can be moved before the higher courts, if the aggrieved person is not in a position to approach the court for redress and such person belongs to a class or group of persons who are in disadvantaged position on account of poverty, disability or other social or economical impediment, and are unable to enforce their rights[11]. 

There is no abstract procedure prescribed for initiating public interest litigation. Such motion may be initiated not only by a regular petition under Article 32 before the Supreme Court of India and  Article 226 before the High Courts, but also by a letter address to the Court or even a telegram sent to the registry of the Court[12]. 

The involvement of higher judiciary in ensuring access to justice is a matter requires appreciation. It is worth to highlight some of such instances.  In common cause v. Union of India, AIR 1996 SC 929, the Supreme Court of India, issued necessary directions to the Government to appoint expert committee and take urgent actions to curb the situations of serious deficiencies and shortcomings in the matter of collections, storage and supply of blood through blood centres. In Bhopal Gas Peedit Mahila Udyog Sangathan v. Union of India, AIR 1989 SC 1069, the Court framed an interim relief scheme for the welfare of victims of Bhopal Gas Leakage Tragedy and directed the government to implement the scheme. In Indian Council for Enviro- Legal Action v. Union of India, AIR 1996 SC 1446, the Court burdened the industrial units, which are responsible for causing extensive damages to the environment and local residents held that the principles of strict liability and polluter pays will applicable in such cases.

When the instances of child exploitation, including prostitution, were brought to the notice of the Court, in Vishal Jeet v. Union of India, AIR 1990 SC 1412, the Supreme Court India directed the government to take urgent steps in providing rehabilitative homes manned by trained personnel. The Supreme Court in Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14 directed the authorities to evolve a scheme for compensation and rehabilitation of rape victims and laid down board parameters in assisting the rape victims. The court’s timely actions in Pradeep Krishen v. Union of India, AIR 1996 SC 2040, to ensure allotment of land for tribal people, regularising their possession of forest lands were widely accepted by the people in this Country.

The judiciary in India has always taken a pragmatic approach in dispensation of justice to the people of this Country. In some instances, the judiciary expanded its authority of administration of justice to enact law, as seen in the case ofVishaka v. State of Rajasthan, (1997) 6 SCC 241 (laid down laws to prevent sexual harassment in work places),D.K. Basu v. State of West Bengal, AIR 1997 SC 610 (laid down laws and procedure for arrest), University of Kerala v. Council of Principal of Collages in Kerala, (2009) 2 SCJ 915 & (2009) 7 SCC 726  (laid down the law prohibiting ragging in educational institutions) and In Re Destruction of Public & Private Properties v. State of Andhra Pradesh, (2009) 5 SCC 212       (laid down the principles for awarding compensation for the victims of political violence and recovery of damages in cases of causing damages to public properties).  

Role of Quasi- Non Judicial Institutions.    

The Non Judicial Institutions constituted either under the provisions of the Constitution or as per different statutes, also have a pivotal role strengthening the access to justice. Our constitution identified certain class peoples in this country as Scheduled Castes and Scheduled Tribes, on the basis of Orders issued by the President of India under Articles 341 and 342.  To investigate and monitor all matters relating to the safeguards provided to these Scheduled Classes of people there is a National Commission for Scheduled Castes constituted under Article 338 and a National Commission for Scheduled Tribes constituted under Article 338A.

The people belong to socially and educationally backward classes are the genuine and deserving classes of people coming under the so called disadvantaged class. To investigate and monitor the welfare and social security measures of these classes, there is a National Commission for Backward Classes, appointed in terms of provisions of Article 340 of the Constitution and National Commission for Backward Classes Act, 1993. There is National Commission for Minorities constituted as per the provisions of National Commission for Minorities Act, 1992, for the specified classes of minorities, either linguistic or cultural, in terms of Article 29 of the Constitution of India.

Equality of status and opportunities is the basic ideal of the Constitution.  However, Article 15(3) of the Constitution permits granting special status to women and children. To safeguard the interest of the women and to monitor their social security, there are Women’s Commissions in National and State levels, constituted as per the provisions of respective Women’s Commission Acts.

In the fields of protection of child rights, National Commission for Protection of Child Rights and State Commissions of Protection of Child Rights and functioning in terms of the provisions of the Commissions for Protection of Child rights Act, 2005. Section 25 of the Act provides establishment of Children’s Court, for speedy trials of the offences against children and offences of violation of child rights.  

To investigate on the incidents of human rights violation there are Human rights Commissions, in the National and the State levels, constituted as per the provisions of the Protection of Human Rights Act, 1993. Section 30 of the Act provides for establishment of Human Rights Court, for each district, to facilitate speedy trial for offences arising out of violation of human rights. 

These institutions often pilot necessary programmes for strengthening the access to justice for the respective classes of people.  

Modalities to eradicate long delay in administration of justice.  

Occurrence of long delay in conclusion of litigation and huge arrears of cases are the major headaches in the administration of justice and to a greater level, it also affect the programmes for strengthening access to justice.

Recently, certain positive changes are made in the traditional system of administration of justice.  Provisions were introduced in the statutes to conclude the adjudications in a time bound manner. Outer time is prescribed for issuing court notices, appearance of parties in the litigation, filing of defence and conclusion of trials.  Provisions were introduced in the statutes to allow examination-in-chief, by filing affidavit and appointment of commissions to record the oral examinations, in cases of civil nature. In certain fiscal statutes, outer time limit is prescribed to conclusion of statutory adjudications, including disposal of appeals.

There are radical changes implemented in the structure and process of traditional court system, in recent times. The scheme of “Fast Track Courts” is introduced in criminal justice administration to enable speedy trial of grave offences. The recent trends is that almost all the special enactments are providing special courts to adjudicate the offences and violations, like Children’s Court, Human rights Court etc. Introduction of Gram Nyayalaya in grass root level that is in the Panchayat level is another significant measure to enable speedy dispensation of justice and easy accessibility of justice to the people from rural and tribal areas.

An unreasonable delay in the administration of justice is nothing but an unconscionable denial of justice. There are two principal causes for delay in administration of justice. One is the increasing population and the corresponding increase in litigations. Other is lack of resources that is the large numbers of vacancies of Judges and a low judge-population ratio. The Law Commission of India in its 127^th Report, in the year 1988, suggested that the state should improve the Judge-population ratio, which at that time was 10.5 Judges per million populations, to at least 50 judges within five years, to overcome the issues of arrears of cases in the courts.  The Commission had further recommended that by the year 2000 India should command at least 107 Judges per million of population. But we could reach to ratio of 12 to 13 Judges per million, in the year 2002, which has come down to 12.5 in the year 2009.       

[1] Justice V.R. Krishna Iyer, Legally Speaking, Universal Law Publishing Co. Delhi, (2003) at p 171.

[2] Constitution of India, Art. 124.

[3] Constitution of Inadia, Art. 214.

[4] Legal Services Authorities Act, 1987 Section 12.

[5] Code of Criminal Procedure, 1973, Section 304.

[6] Code of Civil Procedure, 1908, Section 89.

[7] See Arbitration and Conciliation Act, 1996, Section 11.

[8] See Arbitration and Conciliation Act, 1996, Section 64

[9] Per Chief Justice S.R. Bannumath in judgment dated 21-01-2010 in W.P. © No 31031 of 2009, para 26.

[10] Nakara D.S. v. Union of India, AIR 1983 SC 130, Upendra Baxi v. State of U.P., (1983) 2 SCC 308, Mehta M.C. v. Union of India, AIR 1987 SC 1086.

[11] Subhash Kumar v. State of Bihar, AIR 1991 SC 420 at paras 7 & 8.

[12] See State of Himachal Pradesh v. A parent of a student of Medical College, Shimla, AIR 1985 SC 910, Mohanlal Sharma v. State of Utter Pradesh, (1989) 2 SCC 600, Sachdev v. Union of India, AIR 1991 SC 311. 

Dr. Pradeep K.P.

Advocate, High Court of Kerala