Access to Justice: Myth or Reality
Waseeq ul Rashid
B.A.LLB 9th Semester Roll No: 26
(i) CONCEPT OF JUSTICE
Since the dawn of human civilization, in the whole range of our
legal, political and moral theory, the notion of justice has always
occupied a central place. All attempts to define the term precisely,
scientifically and exhaustively have faced a baffling problem to
scholars of all hues. Consequently on account of its
multidimensionality, its nature and meaning has always been a
dynamic affair. However, notwithstanding the problem of defining
the term Justice, precisely, scientifically and exhaustively, it is
submitted that “Jurisprudence cannot escape considering justice since
justice is ideally – the matter of law. According to Roscos Pound, Social System has defined certain things as belonging to each individual. ’Justice’ consists in rendering him those things and not interfering with his having and using them within defined limits. But more important than the individual justice is the social justice. The general idea of justice is that individuals are entitled in respect of each other to a certain relative position of equality and inequality. Justice has ever been the highest ideal of mankind. Justice, under various names governs the world-nature and humanity, science and conscience, logic and morals, political economy, politics, history, literature and art. Whatever name may be given to ’Justice’ it is the most primitive in the human soul, most fundamental in society and most sacred among ideas. It is the essence of religions and the sum total of reason, the secret object of faith, and, of knowledge. Nothing can be imagined more universal, stronger and more complete than justice.
According to John Rawls, concept of justice is proper balancing between competing claims.
(ii) NATURE AND MEANING OF ACCESS TO JUSTICE
Access to justice is a basic principle of the rule of law. In the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable. “Access to justice”, in its general connotation, refers to individual’s
access to court or a guarantee of legal representation. Identification and recognition of grievance, awareness and legal advice or assistance, accessibility to court or claim for relief, adjudication of grievance and enforcement of relief, which is, certainly, the ultimate goal of a litigant public, together form the basic features of “Access to Justice”.
Justice is not the monopoly of the privilege few. Every section of society affluent as well as the indigent should have an access to justice. The connotation “Equal Access to Justice” serves to focus on two basic purposes of legal system- the system by which the people may vindicate their rights and/or resolve their disputes under the general auspices of the state.
Firstly, the system must be equally accessible to all, and secondly, it must lead to results that are individually and socially just.
In December 2012, the General Assembly unanimously adopted the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems , the first international instrument on the right to legal aid. The UN Principles and Guidelines establish minimum standards for the right to legal aid in criminal justice systems and provide practical guidance
on how to ensure access to effective criminal legal aid services. The United Nations assists in the development and reform of national policies and frameworks on legal aid, and supports capacity building of state and non-state actors who provide legal aid services in civil, criminal
and family matters.
INTERNATIONAL HUMAN RIGHTS LAWS
The Universal Declaration of Human Rights drafted in the year 1948 gave universal recognition to these rights including the right of ‘access to justice’ in the following manner:
Art.6: Everyone has the right to recognition everywhere as a person before the law.
Art.7: All are equal before the law and are entitled without any discrimination to
equal protection of the law.
Art.8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law.
Art.10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations,and of any criminal charge against him.
Art.21: (1) Everyone has the right to take part in the government of his country,directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country. There are provisions in the International Covenant on Civil and Political Rights, the European Convention and other regional conventions that underscore the importance of the right of access to impartial and independent justice.
POSITION IN INDIA (CONSTITUTIONAL PROTECTION)
The preamble to the constitution of India speaks of justice, social and political and equality of status and opportunity. Article 14 of the constitution provides that the state shall not deny to any
person equality before the law or the equal protection of laws. Equality means that adequate opportunities are laid open to all. By adequate opportunities we mean equal opportunities but not necessarily equal benefits. All of us cannot be treated in the same manner unless all of us are
equal in upbringing and education, which is unthinkable. Children who come hungry to school cannot profit by education in the same manner as those who are well fed. The provision of
adequate opportunity is, therefore, one of the basic conditions of equality.
Equality in the administration of justice thus forms the basis of our constitution. Equality before the law necessarily involves the concept that all the parties to the proceeding in which justice is sought must have equal opportunity of access to Court and of presenting their cases to the court. To remove the inequality of those who are unequal in wealth,
education or social environment, an idea of compensatory discrimination has been developed by courts from the constitutional provisions.
The constitution also confers some socio-economic rights in the form of Directive Principles of States Policy in Part IV of the Constitution. These principles are fundamental in governance of
the country but are not justiciable. Art.33, 39,39A, 43,43A and 46 sum up the socio-economic facets of social justice. The Constitution recognized importance of access to justice to courts,
particularly by resort to the High Courts and the Supreme Court. The right under Article 32 to petition the Supreme Court for enforcement and protection of fundamental rights is itself fundamental right. Though there are volumes speaking for the rights of individuals and their
enforceability in the courts of law, only the golden key can unlock the doors of justice. Different strategies have to be developed to help the poor to get, the benefit of constitutional rights available under the law of the land.
It was unfortunate for the poor that the Courts have till recent past been used for vindicating the rights of the wealthy and affluent because only the rich people could unlock the doors of justice with “golden key”. Now the Courts have no longer remained absolutely indifferent to the problems of the poor. They are jettisoning the role of an impartial arbitrator and are activising themselves for going beyond their prescribed role, to help the poor. The judges in the Apex Court and th High Court’s now go deep into the problems of the poor and do not limit themselves to the
evidence on record. They have taken upon themselves the responsibility of solving the problems of the poor through poor-oriented interpretation of the laws. The judiciary has become active and instead of obstructing the legislative zeal for social welfare programmers’ as on the pretext
of violating the fundamental rights, the Courts vie with legislature in helping the poor. Now the courts are becoming “Courts for the poor” and the struggling masses”. They have shed their status-quo approach and are sensitizing to the need of doing justice to the poor. They have taken
upon themselves the duty to enforce the basic rights of the poor and vulnerable sections of the society.
LEGAL AID AS A MEANS TO ACCESS TO JUSTICE
Legal Aid traditionally means providing lawyers for persons who are unable to pay fees for legal services. Its object is to make it impossible for any man, woman, or child to be denied the equal protection of the laws simply because he or she is poor. The idea underlying Legal Aid is that no
person should on account of poverty or lack of means suffer an injustice for the redress of which a remedy is provided by the Courts of Law or by administrative tribunals. Legal Aid is the right of every indigent-’ and constitutional obligation of the government. Article 39-A of the Indian Constitution was introduced by the Constitution (42nd Amendment) Act, 1976 and it provides that “the State shall secure that the operation of the legal system promotes justice, on a 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”.
Major strides were again made in the development of the jurisprudence surrounding the “right to life” under Article 21, particularly after the landmark decision in Maneka Gandhi 1978 (1) SCC 248. The linkage between Article 21 and the right to free legal aid was forged in the
decision in Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81 where the court was appalled at the plight of thousands of under trials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that “there can be no doubt that speedy
trial, and by speedy trial, we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.” The court pointed out that Article 39-A emphasized that free legal service was an inalienable element of ‘reasonable, fair
and just’ procedure and that the right to free legal services was implicit in the guarantee of Article 21. Justice Bhagwati stated: “legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to
such an accused, the trial itself may run the risk of being vitiated as contravening Article 21…”
Cases of under trials as well convicted prisoners, women in protective homes, unorganized labourers, untouchables, miseries of scheduled castes and tribes, landless agricultural labourers, slum-dwellers etc. are taken up in PIL cases.
ROAD BLOCKS IN ACCESS TO JUSTICE
Human society is full of inequalities. The reason may be any, but all human beings are not equal. There may be differences of physical and mental capacities, of ability, aptitude, efficiency, skill and talent. The society is constituted of rich and poor, masters and servants, employers and
employees, land lords and tenants, landowners and landless labour, manufacturers and consumers, privileged and under privileged physically strong and weak. The inequalities in India mostly based on caste structure and wealth are unnatural inequalities. Poverty and inequality have been inherent in the Social Structure of India. Even in the present India, upper classes are enormously rich and lower classes miserably poor. Workers who create the wealth receive the smallest share. They have to work harder without any leisure, to meet both ends. Disparity in wealth
leads to disparity in rights and privileges. There is a natural tendency of the strong to oppress the weaker. The exploiting wealthier classes have the tendency to suck more and more out of the poor and the poor have no way to get justice. The Maxim Ubi Jus ibi remedium, which means where there is right there, is remedy. It means rights are fruitful when an aggrieved person is able to enforce it in the court of law. There are many stumbling blocks which deter the poor man from moving the court of law. They may be cultural weaknesses, educational deficiencies or economic geographical and psychological barriers. Litigation in the courts generally is very expensive. Though the government has provided the machinery for dispensing justice to the people and pays the salaries of fudges and other court personnel and provides building and other facilities
necessary to try the cases, the litigants have to bear other
costs of settling the dispute e.g. the stamp fee, attorney’s fee and other court costs. An indigent suffers at two ends. First he has to spend on litigation and secondly he has to lose the income for the time spent in connection with litigation. The opportunity costs of lost wages can be prohibitive for the indigent who is just keeping his body and soul together. The delay generally multiplies the costs of litigation which puts great pressure on the economically weak to forgo his claim or settle for much less than his legitimate claim. Geographical situation of the court can also act as barrier to access. A centralized system of courts may probably save money for the government, but it is definitely inconvenient for the litigants living at far off places. It may become physically or economically impossible for the most of the disputants to use the courts for small disputes. An important barrier is the lack of knowledge about the legally enforceable right. The people specially the underprivileged have no awareness of available facilities and how to use them. Whatever may be the law in books, the law in action results sometimes in great injustice to
the socially and economically disadvantaged section of the society. The problem of access to justice is deep and pervasive in India and has affected the ability of the legal system and judicial process to respond to injustices. A range of reforms in legal judicial and institutional needs to be initiated for dealing with delays and ensuring access to justice.
To achieve the object of Equal Access to Justice, every section of the society has a role to play. Lawyers, students and voluntary organizations, due to their peculiar character have special role in this movement. Lawyers may render free legal aid and advice in certain number of cases every year. Students especially law students have their own place in ‘Equal Access to Justice programme’. They can help the poor in legal problems through the law school legal services clinic.
CONCLUSION: THE WAY FORWARD
Voluntary organisations can identify the deficiencies in law and suggest amendments, promote settlements amongst the people without any tensions, organise public education on welfare laws programmes. They can act as complaint centres to receive the complaints regarding the grievances of the people and to take, up the matter with the concerned authorities.
The Government attorneys and public prosecutors should not contest each adversary case indiscriminately.Alternate dispute resolution mechanism like mediation, conciliation, Lok Adalat should be encouraged.
We hope a day will come when all will have an equal access to Justice and flourish under the cool shade of our constitution and reap the fruits of the welfare laws and enjoy the fundamental rights as well as the social rights conferred by different statutes. To achieve the object of Equal Access to Justice, every section of the society has a role to play.