Access to Justice in India

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Context:  The Chief Justice of India, S.A. Bobde, expressed concern about the inequality created by the reliance on technology at a meet arranged by the Supreme Court to celebrate Constitution Day. The CJI was referring to inequality in the sphere of justice delivery: that the biggest challenge for the courts was delivering justice unhampered to the 'common man'.

Relevance:
Mains: GS II- 

  • Structure, Organization, and Functioning of Judiciary.
  • Social Justice.

 

Introduction

  • The Concept of access to justice has undergone an important transformation. Earlier, a right of access to judicial protection meant essentially the aggrieved individual's formal right to merely litigate or defend a claim.
  • The reason behind this was that access to justice was a natural right and natural rights did not require affirmative state action.
  • However, with the emergence of the concept of the welfare state, the right of access to justice has gained special attention and it has become the right to effective access to justice, which is regarded as the most basic human right which not only proclaims but guarantees the legal rights of all.
  • Today, access to justice means having recourse to an affordable, quick, satisfactory settlement of disputes from a credible forum.
  • The words “access to justice” serve to focus on two basic purposes of the 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.
  • Access to justice can be broadly categorized into formal and informal access to justice. The formal access to justice is basically adjudication of disputes by the courts which follow the rules of civil and criminal procedure. 
  • On the other hand, informal access to justice includes alternative modes of dispute resolution such as arbitration, conciliation, mediation, Lok Adalats, and Nyaya Panchayats.

Constitutional Provisions

  • Preamble:  The Preamble guarantees to all the citizen of India, Social, economic and political Justice and Equality of Status and Opportunity.
  • Fundamental Rights: 
    • Article 14:  The state shall not deny to any person, equality before the law, and equal protection of law within the territory of India.
    • Article 21: Protection of Life and personal liberty.
  • DPSPs: Article 39A states 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.
  • Article 130: The Supreme Court of India shall sit in Delhi or in such other place, as the Chief Justice of India may, with the approval of the President from time to time, appoint.

Statutory Provisions

  • Legal Services Authority Act, 1987:
    •  An act to constitute legal services authorities to provide free and competent legal services to the weaker sections of society, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
    • To organize Lok Adalats to secure the operation of the legal system promotes justice on the basis of equal opportunity.

Supreme Court Judgements on Access to Justice

  • Khatri Vs State of Bihar (1981): The Supreme Court stated that the Right to Free Legal Aid is a fundamental right covered under Article 21 of the Fundamental Rights.
  • All India Judges Association vs Union of India (2001): The Supreme court had directed the Government of India to take measures to increase the ratio of the number of Judges to 50 per million population.
  • Anita Kushwaha vs Pushap Sudan (2016): The Supreme Court had said that the following are the four main facets that constitute the essence of access to justice:
    • The State must provide an effective adjudicatory mechanism.
    • The mechanism so provided must be reasonably accessible in terms of distance.
    • The process of adjudication must be speedy.
    • The litigant’s access to the adjudicatory process must be affordable.

Challenges in the way of access to justice 

  • The Seat of the Supreme Court: The Supreme Court of India sits only in Delhi and following issues arise because of this:
    • Absence of Good Lawyers who appear before the High Courts of various states
    • Low Calibre Lawyers appearing before the Supreme Court
    • An exorbitant fee due to monopoly of the very few good lawyers appearing before the Supreme Court.
  • Adversarial Legalism: Though the constitution envisions a proactive role for the state in ensuring justice to all the citizens without any discrimination, the state plays the role of neutral referee in most of the cases.
  • Continuous inordinate delay in the appointments of Judges: 
    • The ratio of number of Judges to a million population in India is 19 when compared to 100 in the USA, 75 in Canada and 50 in the UK. Even the available posts are not fully filled. This leads to an inordinate delay in the dispensation of justice, eroding the people's trust in the judiciary.
  • Complicated Judicial Process: The complicated process of filing a case at the registry and the subsequent judicial process makes the justice inaccessible to the ignorant and illiterate masses.
  • Cost hurdles: The huge cost of litigation due to inordinate delays sometimes causes the victims of injustice to not approach the courts for justice.
  • Unethical Lawyers: 
    • The ineffective application of disciplinary action under the Advocates Act,1961 against the unethical lawyers encourages unethical manipulation of the ignorant clients by unethical lawyers. This makes access to justice inequitable.
  • Lack of Sufficient Digital Infrastructure for Video Conferencing: 
    • Even though the Supreme Court and High Courts have started using Video Conferencing to dispose off the cases during the Covid-19 pandemic, such digital infrastructure is not available with District Courts. Also, people living in rural areas don't have access to the required digital infrastructure.
  • Non-adherence to the principle of power parity in dispute resolution: 
    • The economic and social inequalities sometimes result in the vulnerable being forced to settle the dispute instead of getting the deserved justice.  Hence the principle of parity before the law is sometimes not followed.
  • Ineffective administration of government-provided free legal representation:
    • The problem in the existing framework is that judges are made responsible for the administration of legal aid.
    • Despite humongous caseloads, a significant number of judges are required to distribute their workload between adjudication of disputes, court logistics, scheduling of cases, and administration of legal aid.
    • In addition to the time and resource constraints, Judges lack the necessary managerial skills to oversee the provision of what is essentially a social welfare benefit.
    • As a result, the administration of legal aid receives scant attention and is poorly managed. This is a significant barrier for socio-economically disadvantaged communities to access justice.
  • Lack of Feedback Mechanism: 
    • The current system of legal aid also lacks effective monitoring and evaluation and feedback mechanisms to ensure that the service provided to beneficiaries is efficacious.
    • The law mandates the establishment of monitoring committees to seek frequent reports and review the work of legal aid counsels.
    • However, studies have found that a mere 60 per cent of district-level authorities have established monitoring committees, and less than 25% of them maintain the registers used to track the progress of legal aid cases. These committees, too, are presided over by judicial officers.

Way Forward

  • The Chief Justice of India must consider the reports of the 125th and 229th Law Commissions and establish new benches to make justice more accessible. This will also reduce the expenses people incur in getting justice.
  • The Bar Council of India must take disciplinary action against unethical lawyers and the Provisions of the Advocates Act,1961 should be effectively implemented.
  • As said in the All India Judges Associaton vs Union of India case the ratio of the number of judges to million population should be increased to 50. This would bring down the inordinate delay in dispensation of Justice.
  • More number of disputes could be referred to trained mediators like in the Ayodhya dispute. This would reduce the burden on the Judiciary.
  • Measures should be taken to ensure that the Supreme court serves mainly as the final appellate court and the Constitutional Court.
  • The Mechanism of Alternate Dispute Resolution through Lok Adalats, Nyaya Panchayats etc should be strengthened to settle the disputes amicably and reduce caseload on the judiciary.
  • The responsibility for arranging for legal aid should be transferred from judges to a dedicated administrative body. While a judicial officer may oversee the working of these bodies, the day-to-day administration of their functions must be carried out by experienced managerial personnel.
  • Establishing a technological system that can be synced with digital court records will enable the person in charge of a legal services authority to effectively monitor the progress of cases handled by legal aid counsels, allocate work amongst them, and allow for performance-based incentives to improve the delivery of legal aid services.

Case Study– Insaaf ki Dastak initiative by the Jammu and Kashmir High Court

  • It is a unique initiative to enable continuous access to justice to people living in areas that disable them on account of being located in far-flung locations, prevented by harsh weather conditions or on account of ignorance, illiteracy, disability, poverty, or any other disabling reasons in approaching the nearest Munsiff, Magistrate, District and Sessions Courts, and the High Court.
  • A party residing in a remote area, desirous of filing a case before a Judicial Magistrate may file the same before the nearest approved centre or the nearest Government Post Office.
  • Such litigants may seek assistance in drafting/ filing from para legal volunteers/ panel lawyer attached to the concerned Approved Centre.
  • It has been provided that these cases shall be accorded priority for their listing/hearing.
  • A person belonging to a remote area may engage any counsel of his/ her choice. In case he/ she desires so, the Legal Services Authority (SLSA)/concerned District Legal Service Authority (DLSA)/Jammu Kashmir High Court Legal Services Committee/Approved Centre shall provide legal service to such person.
  • The first programme under this initiative is setting up of Camp Courts. The concept of the Camp Courts is that the Judicial Officers will travel to far-flung and inaccessible areas that become physical obstacles for citizens in reaching the nearest court or to the marginalised communities because of their disabilities.
  • The High Court has set up eleven such Camp Courts in the month of February 2019.
  • It will be the responsibility of the District and Sessions Judge concerned to also ensure compliance of the statutory provisions and the rules, Appropriate premises for court, Appropriate accommodation for the Judge and staff, Necessary equipment Security of the Judge and staff.
  • The Camp Court judges shall also coordinate with the state machinery and synchronize the court sittings with visits of representatives of concerned departments (which may include revenue/education/health/ banking / rural development / social welfare/labour amongst others) to facilitate the local population and maximise the benefits of their visit.



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