ACCESS TO JUSTICE BHRIGURAJ MOURYA Dewan Law College, Meerut.
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 ef
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,
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 year of Independence, in its final report suggested for incorporation of this right as fundamental rights by incorporating Art.30 A, in the Constitution.
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 and minority rights, 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
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 and High Courts in each States
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.
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. There are Legal Services Authorities in National, State and District Level and Legal Services Committees at Supreme Court, High Courts and Taluka 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.
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. We have identified the process of Arbitration, Conciliation, Mediation and Settlement through the Special Agency, namely Lok Adalat, as the effective and speedy modes of alternative disputes resolutions. We have Lok Adalat, 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.
Arbitration and Conciliation Act, 1996, provides an excellent system of alternative dispute resolution by way
of Arbitration and Conciliation. 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.
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.
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