November 25, 2020

Access to Justice: Need for Reform

Introduction

ACCESS to justice in any society is critical and fundamental. The terms “access to justice” cannot be defined in a single line or a definition. It is a political, legal, and rhetorical symbol of undeniable power and attractiveness for the subject of state craft.[1] It is not only the most basic requirement of any system of justice or the most basic human rights of any system that purports to guarantee legal rights but also the hallmark of any sane and civilized society.[2] A democratic society is characterized by appropriate restraints on power, equal treatment before the law and equal access to the protection of the law – for all citizens. Just like defense or police spending is important to keep citizens safe and to protect our way of life, so too is spending on our society’s safeguards. As the adage goes, the true personification of justice is blind. Justice should be dispensed without fear or favor, regardless of money, wealth, fame, power or identity. Redressing the power imbalances that stem from a person’s lack of capacity, or from unequal access to financial resources, is at the heart of a modern day justice system. The notion of justice evokes the cognition of the rule of law, of the resolution of conflicts, of institutions that make law and of those who enforce it; it expresses fairness and the implicit recognition of the principle of equality.[3] The Constitution Bench of the Supreme Court has held that access to Justice is a Fundamental Right guaranteed to citizens by Article 14 and Article 21 of the Constitution of India. The lack of awareness, education, knowledge, lengthy processes, huge money expenditure are some basic reasons because of which India lags behind in the whole scenario of access to justice this essay analyses the reasons as well as suggests reforms for providing equal access to justice to each and every citizen of India.

Meaning Of Access to Justice

Access to Justice makes different sense to different people. In today’s world,” Access to justice” means having recourse to an affordable, quick, satisfactory settlement of disputes from a credible forum.[4] The words “access to justice” serve to focus on two basic purposes of legal system- the system by which people may vindicate their rights and/or resolve their disputes under the general auspices of the state. Thus it requires that the system, firstly, must be equally accessible to all, and second, it must lead to results that are individually and socially just.[5]. 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 right, challenge discrimination or hold decision maker accountable.[6] In its narrowest sense, it represents only the formal ability to appear in court. Broadly speaking, it engages the wider social context of our court system, and the systemic barriers faced by different members of the community. There are two primary streams of thought about the meaning of access to justice. The first emphasizes the “access” half of the equation and focuses on the availability of resources to help individuals resolve disputes. The second steam emphasizes “justice” and argues that the justice we seek consists of more than exposure to dispute resolution services.[7]

Access to Justice Is a Fundamental Right

A Constitution Bench of the Supreme Court in Anita Khushwa v. Pushpa Sadan (judgment delivered on July 19, 2016) has not only affirmed earlier declarations that ‘access to justice’ is a fundamental right under Article 21, but has made an effort to identify the various components of access to justice.5 CJI TS Thakur, speaking for the Bench, declared that access to justice is not only to be found in Article 21 but also under Article 14. The CJI further identified four facets of access to justice-

a) The state must provide an effective adjudicatory mechanism;

b) The mechanism so provided must be reasonably accessible in terms of distance;

c) The process of adjudication must be speedy; and

d) The litigant’s access to the adjudicatory process must be affordable.

Barriers in Access to Justice

The different constitutional scheme has not seen the light of the day in practical working. The colonial hang-over is still haunting our legal system insomuch so that we are still following the adversarial model of litigation. Following this alien model has lead to a lot of problems. Some of them are enumerated

· Cost barriers in the court system

· Illiteracy

· Misconception about the reliability and credibility of courts being unbiased and impartial

· High cost of legal advice and representation.

· Corruption in judiciary

· Long time taking procedure

· Unawareness

· Diminishing quality of legal education

Essence of Access to Justice

According to the bench of five Judges comprising of Chief Justice of India T.S. Thakur, Justices Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde, and R. Banumathi the four main facets comprising essence of justice are.[8]

1. The need of adjudicatory mechanism: One of the most fundamental requirements for providing to the citizens access to justice is to set-up an adjudicatory mechanism whether described as a court, Tribunal, commission or authority or called by any other name whatsoever, where a citizen can agitate his grievance and seek adjudication of what he may perceive as a breach of his right by another citizen or by state or any one of its instrumentalities. In order that right of a citizen to access justice is protected, the mechanism so provided must not only be effective but must also be just, fair and objective in its approach. So also the procedure which the court, Tribunal or Authority may adopt for adjudication, must, in itself be just and fair and in keeping with the well recognized principles of natural justice.

2. The mechanism must be conveniently accessible in terms of distance: The forum/mechanism so provided must, having regard to the hierarchy of courts/tribunals, be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance effectively before the court/tribunal/competent authority to grant such a relief.

3. The process of adjudication must be speedy: Access to justice” as a constitutional value will be a mere illusion if justice is not speedy. Justice delayed, it is famously said, is justice denied. If the process of administration of justice is so time consuming, laborious, indolent and frustrating for those who seek justice that it dissuades or deters them from even considering resort to that process as an option, it would tantamount to denial of not only access to justice but justice itself. In Sheela Barse’s case[9] this Court declared speedy trial as a facet of right to life, for if the trial of a citizen goes on endlessly his right to life itself is violated. Access to Justice would, therefore, be a constitutional value of any significance and utility only if the delivery of justice to the citizen is speedy, for otherwise, the right to access to justice is no more than a hollow slogan of no use or inspiration for the citizen. It is heartening to note that over the past six decades or so the number of courts established in the country has increased manifold in comparison to the number that existed on the day the country earned its freedom.

4. The process of adjudication must be affordable to the disputants: Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39-A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate section of the society.

Why Reforms Are Necessary For Access to Justice

Jurisprudence relating to access justice can be traced back to the Magna Carta, which in its 40th paragraph provides that, “to no one will we sell, to no one will we deny, or delay, right or justice.”[10] Article 14 of the Constitution makes it incumbent on the State not to deny to any person equality before law or equal protection of law. 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. The crisis of delays that has engulfed the Indian judicial process calls for responses at multiple levels of decision-making. A range of reforms — legal, judicial and institutional — needs to be initiated for dealing with delays and ensuring access to justice.[11] Equal access to justice is a fragile concept in this country, which for people of low income, is often difficult to obtain whether it’s in criminal, municipal or civil courts. Civil courts handle disputes between parties where one party feels harmed by another party. The consequences in civil court can be very high — loss of home, loss of safety, loss of health care, loss of income, and even loss of life. If you are not represented by legal counsel because you cannot afford an attorney, your chances of success are greatly diminished.[12] The justice delivery mechanisms continue to be centralized and the existing court systems are based on a hierarchical governance structure, which may not be able to effectively address the problems of injustices in the Indian society. The stress that the civil and criminal justice system is facing is also attributed to the lack of capacities of the appellate courts in dealing with disposal of cases.[13] The existing legal and institutional mechanisms for promoting access to justice are not adequate and lawyers need to own up to some of the responsibility in bringing this state of affairs to pass. While there is an increasing acknowledgment of the urgent need for establishing more High Court benches, the proposals to do so tend to get embroiled in a mix of unwarranted controversies and petty politics. Lawyers in the cities where High Courts are located object to the establishment of additional benches. This problem of vested interests was squarely addressed by the 230th Report of the Law Commission of India, which noted: “Sometimes, some advocates object to [the] creation of new benches and selection of new sites for construction of new buildings. But they raise objections in their personal, limited interest. Creation of new benches is certainly beneficial for the litigants and the lawyers and a beginning has to be made somewhere. We must always keep in mind that the existence of judges and advocates is because of the litigants and they are there to serve their cause only.” Lawyers being officers of the court have duties and obligations to society at large. Rather than take a myopic, parochial view of the matter, they should adopt a holistic viewpoint and appreciate the sheer indispensability of access to justice to the health of the very legal system which sustains them, while forming their views and perspectives on the matter.[14] The Indian legal system is also facing challenges at the level of justice delivery. A number of people who are aggrieved are not able to seek justice because of the prohibitive costs of litigation and the delays that come along with them. The Indian legal profession is facing a number of challenges. There is need for democratization of the legal profession and this will not happen until we improve the quality of legal education. Legal education that is currently offered in Indian law schools needs to be improved by providing greater access and opportunities for young law students and budding lawyers to have greater exposure to High Court practice.

Reforms for Better Access to Justice

Equality is the basis of all modern systems of jurisprudence and administration of justice in so far as a person is unable to obtain access to a court of law for having his wrongs redressed or for defending himself against a criminal charge, justice becomes unequal and laws which are meant for his protection have no meaning and to that extent fail in their purpose.[15]Alternative Dispute Resolution‖ encompasses arbitration, mediation, conciliation, and other methods—short of formal litigation—for resolving disputes. ADR offers several advantages over a lawsuit. It is less adversarial and in some cases can be faster and less expensive. It can also reduce court workloads. For these reasons its use is being promoted by court reformers in many developing economies.[16] Thus a good dispute resolution method should be such which minimizes the advantage of money and pelf. In addition, a good resolution mechanism should pass the acid test of conforming to all the bands in the power spectrum as enunciated by Prof. Julius stone.[17]

The Alternate Dispute Resolution Mechanisms have been mere window dressing and have not been able to answer the basic realities of the difference of capabilities between the parties. Perfect equality may be impossible but still attempts can be made to build a system of access to justice based on principles on parity of powers.[18] Section 166 of the Indian Penal Code[19], includes personal liability of the public servants whenever they act in derogation of their duty. Non-performance of duty means disobeying direction of the laws. Section 197 of the Criminal Procedure Code 1973[20] which stands as a bar to Section 166 of IPC as it requires prior sanction of the government before prosecuting any government servant should be repealed as it is unconstitutional. It violates the directive under Article 14 of the Indian Constitution. According to the mandate of this Article which is an aspect of the Rule of Law as propounded by Dicey, no man is above the law and every person, whatever is his rank or conditions, is subject to the jurisdiction of ordinary courts. In the view of Justice Holmes.

―the prophesies of what the courts will do in fact and nothing more pretentious is what I mean by the law‖. The meaning of the statement forcefully indicates that the law for today is to be found in the next case rather than the last. But the Indian Constitution doesn‘t support the views of Justice Holmes. Article 141 states that only law declared by the Supreme Court shall be binding. This provision eliminates the definition of Justice Holmes and doesn‘t give scope for law making by the Judiciary. Next it requires the courts to adopt a principle oriented approach rather than precedent oriented approach. It means the courts have to declare the principle of law in unequivocal terms. The principle will enshrine the legal reasoning behind the decision. And then shall apply the principle to the particular fact situation before them in other words would apply deductive reasoning. This will create safeguards against inconsistent, unpredictable and uncertain decisions.[21] There should be a conscious effort to provide opportunities for law students to the extent possible to regularly observe court practice, not only in lower courts, but also in the High Courts. This will not be possible if there are fewer High Courts in the country — only a limited few law schools and students who are located near the High Courts have access to it. Establishing additional benches will create new possibilities for lawyers to engage in practicing law in those benches and this will have a direct consequence in improving the quality of the legal profession.[22]

Conclusion

So, according to the above discussion, it can be concluded that there are several loopholes in the formal adjudication mechanism regarding access to justice. the Informal modes of access to justice which includes Nyaya Panchayats, lok adalats, Negotiation, Mediation, Conciliation, Arbitration and Institution of Ombudsman working in India, are not adhering to the principle of parity of power and are also not in consonance with the constitutional mandate.[23] The present alternative methods of access to justice are also not coping up with the needs of the people. Arbitration is undoubtedly, a good method of access to justice but it does not specifically deal with the problems faced by the Indians. Another problem is that it is based on the adversarial model of litigation which results in delay and high costs. Judiciary is something which also should be made accountable on their part for delay in access to justice. Overall there is still a great need of reforms in the whole concept of access to justice in India. And making reforms is not a favor or grace by our system on the citizens instead it is the right of every citizen.


[1] Amit Pratap Shaunak, Access to Justice in India, 27 jan, 2015.

[2] https://guardian.ng/opinion/the-challenges-of-access-to-justice/

[3] Rawl John, ” A Theory of Justice” (Harvard University press, Edition 1997) p11

[4] P P Rao, Access to Justice and delay in disposal of cases, Indian Bar Review, vol-30, 2003, pp 208 5. ‘cited in’ http://en.wikipedia.org/wiki/Adversarial_system

[5] Amit Pratap Shaunak, Access to Justice in India, 27 jan, 2015.

[6] Access to Justice, United Nations and the Rule of Law, https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-law-institutions/access-to-justice/

[7] M. Jerry Mchale, Q, Access To Justice

[8] http://www.livelaw.in/access-justice-fundamental-right-guaranteed-article-14-21-constitution-sc-constitution

[9] JT 1986 136 1986 SCALE (2)230

[10] Multiple Action Research Group(MARG), Needs Assessment Study of Legal Services Authorities, iv (2012) available at http://www.undp.org/content/dam/india/docs/DG/needs-assessment-study-of-selected-legalservices- authorities.pdf (Last visited on July 28th , 2013)

[11] http://www.thehindu.com/opinion/lead/Expanding-access-to-justice/article11758732.ece

[12] Importance Of Access To Justice For All, Dan Glazeir

[13] Expanding Access To Justice, C. Raj kumar

[14]http://www.thehindu.com/opinion/lead/Expanding-access-to-justice/article11758732.ece

[15] Law Commission of India, 14th Report on Reform of Judicial Administration, at 587.

[16] Mnookin, Robert H., Alternative Dispute Resolution, in Peter Newman (ed.), The New Palgrave Dictionary of Economics and the law. vol. 1, London: MacMillan Reference, 1998, at 236.


[17] Stone Julius, Social Dimensions of Law and Justice. Stanford: Stanford University Press, 1966. The bands are coercion band, ethical band, influence band, interest affected band, head count band and time count band.

[18] Iftikhar Hussian Bhat, ACCESS TO JUSTICE: A CRITICAL ANALYSIS OF ALTERNATE DISPUTE RESOLUTION MECHANISMS IN INDIA.

[19] Section 166- Public Servant disobeying law, with intent to cause to any person – whoever, being a public servant, Knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

[20] When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no court shall take cognizance of such offence except with previous sanction.

[21]Iftikhar Hussian Bhat, ACCESS TO JUSTICE: A CRITICAL ANALYSIS OF ALTERNATE DISPUTE RESOLUTIONMECHANISMS IN INDIA.

[22]http://www.thehindu.com/opinion/lead/Expanding-access-to-justice/article11758732.ece

[23] Amit Pratap Shaunak, Access to Justice in India, 27 jan, 2015.

Author Details: Aparna Verma


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