This article has been written by Aksshay Sharma, a student of Department of Laws, Panjab University. The article deals with what access to justice is, and what are issues marginalised communities face while seeking justice. It also deals with what the government has done to ensure that access to courts is not hampered. Further, the article also talks about the importance of legal aid and how it can be instrumental for delivering justice to marginalised sections.
It is unfortunate to be marginalised but it is worse to be marginalised, vulnerable and unprotected in a developing country. The marginalised are most affected even by slightest disruptions or shocks e.g. during the nationwide curfew to contain the spread of COVID-19, the economically disadvantaged people were the most affected.
Access to justice is the ability of a State where every person can get judicial redress irrespective of his economic and other disabilities and that too in a fair, equal and speedy manner. Access to justice can be formal i.e. by approaching the courts for a judicial remedy and informal i.e. legal out of court settlement, such as Arbitration, Mediation and Conciliation.
Meaning of marginalized groups and marginalization
Marginalisation means to be forced to occupy the sides or margins of something. In a sociological sense, it means when a certain group of people are excluded from the normal course of life and are forced to the edge of society because they speak a different language or follow different social customs or do anything which is not in sync with the views of the majority. Marginalisation is a social phenomenon and happens when a certain section of people are considered unimportant and are therefore isolated from the mainstream sections of society.
Reasons for marginalisation
In India, groups of people are also Marginalised because of their poverty or because they belong to a different caste, different sex, ethnicity, occupation (like manual scavenging) etc. Marginalised groups in India are also called vulnerable groups because they are vulnerable to abuse and discrimination by the majority. The Marginalised people are at a disadvantage in comparison to other sections of people, they may be at a disadvantage Socially and Educationally like SCs (Scheduled Castes) and STs (Scheduled Tribes), Economically (poorer sections especially those who are below the poverty line or just above poverty line), or even Politically i.e. when they are not able to exercise their right to vote, like communities of people living in remote areas.
Thus In India marginalised section consists of Scheduled Castes (people who have suffered discrimination because of their birth in lower caste groups or tagged as untouchables), Scheduled tribes (Adivasis), Other Backward Classes (people who are socially and educationally backwards but are not SCs and STs), women (women traditionally were considered inferior to men and thus were not allowed to take part in many aspects of life), LGBTQ (this section has faced marginalisation since the time of the British Raj, just because of their different sexual orientation and identity), people with diseases like HIV/AIDS, Leprosy etc.
These people are denied even the most necessities of life, including access to justice.
Elements to the access to justice
Concept of justice in India is wide, the Preamble to Indian Constitution provides for Justice in the Social, Economic and Political sphere. Injustices in any of the three are deemed to be lack of access to justice. Concept of Justice includes following aspects: Rule of law, Resolution of Disputes, Legislative Institutions (law-making), Adjudicatory Institutions (Courts and tribunals), Due Process of Law i.e. the law must be just, fair and equitable, non-discrimination and equality.
It is usually considered that access to justice means physical access to courts. However, the concept of justice is wide and has many aspects namely:
- Identification and recognition of grievances: This is addressed by enacting effective legislation, which in turn depends upon the data collection and analysis of such data. Thus the legislature and executive play a crucial role in access to justice since injustice cannot be dealt with by a uniform set of laws e.g. violence against SCs and STs cannot be adjudicated as a normal act of assault and thus Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 was enacted.
- Awareness about discrimination and laws: According to Upendra Baxi, access to justice signifies the ability to participate in the judicial process.
- Accessibility to courts: Black’s law dictionary defines access to justice as “the ability within a society to use courts and other legal institutions effectively to protect one’s rights and pursue claims”. Lack of judicial apparatus severely affects access to justice. Access to courts must be understood as easy access to courts without incurring considerable expenses in travelling, consulting advocates etc. The concept of PIL and free legal aid considerably improved the access to justice of those who need it the most as a public-spirited citizen can approach the High Courts and Supreme Court for adjudication. Similarity Article 32 and 226 of the Constitution provides a person to directly approach the courts for enforcement of their Fundamental Rights. Data has shown that the majority of such cases involve violation of the Fundamental Rights of marginalised sections, especially the socially and educationally backward section.
- Adjudication of grievances: This aspect involves how much time it takes for the courts to give a final verdict. This aspect essentially deals with the laxity in police investigations
- Enforcement of relief: Thus it is not just physical access but also the quality of justice. Supreme court in Anita Kushwaha v. Pushap Sudan laid down following aspects of Right of access to justice:
- Provision of an effective adjudicatory mechanism.
- A mechanism so provided must be reasonably accessible in terms of distance.
- Process of adjudication must be speedy.
- The litigant’s access to the adjudicatory process must be affordable.
Barriers for justice to marginalised groups
Access to justice has been recognised as part and parcel of the right to life (Anita Kushwaha v. Pushap Sudan, 2016). It is so basic that denial of justice is considered a direct violation of the Rule of Law. One of the elements of Rule of Law is that no person shall be punished except for the breach of the law, however, when justice is denied due to lack of accessibility and quality then this element is directly violated since peoples rights are violated just because they are different from the rest of the society in matters of religion, caste, sex, ethnicity among others.
There is no access to justice where citizens (especially marginalized groups) fear the system, see it as alien, and do not access it and where the justice system is financially inaccessible; where people do not have information or knowledge of rights or where there is a weak justice system.
- Lack of awareness: Lack of awareness is a major impediment for vulnerable groups to access justice. Many communities like of Adivasis/STs are not aware of constitutional safeguards and other statutory provisions put in place for the upliftment of the community and redressal of their grievances, as a result, they consider the discrimination and abuse perpetrated on them as banal. The executive must set up a mechanism so that people especially the marginalised know about their rights and remedies in case of violation of those rights. An informed citizenry is crucial for an effective justice system. As justice P.N. Bhagwati said, “Poor and illiterate should be able to approach the courts and their ignorance and poverty should not impede in the way of obtaining justice from the courts”.
- Complicated Process: The “procedure established by the law” is very complex, which at times requires interpretation from higher courts. A large section of people does not want to approach the courts or other forums due to the complex and expensive redressal process. Such a complex process results in prolonged trials. Right to a speedy trial has been interpreted to be implicit in Article 21 and due procedure of law. A procedure cannot be reasonable, fair and just unless it ensures speedy trial for determination of the guilt of the person deprived of liberty (Moses Wilson v. Karluriba, 2008) A large section among the marginalised are illiterate and thus have a complicated process of courts restricting their access to justice. According to DAKSH Access to Justice Survey, 2017 complex, costly and time-consuming process of court is the sole reason for people not opting to approach the courts.
Geographical Barriers: India sub-continent has an extremely varied geography, which although is a blessing but also poses certain challenges. Access to justice is one such, especially in rural areas. This can be resolved to some extent through e-courts and will not burden a State’s fiscal. Relationship between law and community can be improved by ensuring access to justice and e-courts is one such way to improve it. In many trials in India, the physical presence of the accused and victim is necessary, e-courts will reduce overall litigation expenses by appearing virtually.
Some states have tackled the issue of geography by setting up benches of High courts in cities other than State capitals as well, however, what is required immediately is the penetration of subordinate courts to far-flung areas.
Poverty and high cost of Litigation: This is a major impediment which discourages marginalised and weaker sections to even report their cases and thus opt for out of court settlements which in the majority of cases is disadvantageous to them. The lengthy court process prevents a poor litigant to approach the courts, because they incur “Opportunity Cost”, for attending court proceedings. According to Justice Ruma Pal, Many lawyers specialising in victim compensation charge huge amounts of money from the compensation awarded by the courts. This process frustrates the whole purpose of victim compensation. Thus economic incapacity hinders a person’s access to justice.
For the poor to attend court proceedings would entail the loss of livelihood for that day, thus faced by the realities of life, the poor prefer not to knock the doors of justice.
- Lack of Physical Infrastructure: The judicial apparatus in India is under severe stress due to the quantum of cases. Lack of court infrastructure in terms of the number of courts and judges, especially at the district level, delays the process of justice and violates the right to a speedy trial. This is even worse if the victim belongs to the marginalised section especially women, Scheduled Castes and Scheduled Tribes.
Lack of requisite infrastructure dilutes the quality of justice delivered. Gram nyayalayas have solved the access to courts for rural areas to a certain extent. These nyayalayas are crucial since a considerable amount of cases involving atrocities and discrimination against marginalised is reported in rural areas. Thus these institutions enable access to the formal justice system and ensure that democracy reaches to every section of society irrespective of geography. Gram Nyayalaya has both civil and criminal jurisdiction. These institutions are presided over by a Nayayadhikari, who has the same power and benefits as a judicial magistrate of the first class. Such Nyayadhikar is appointed by the State government after consulting their respective High Courts. Gram Nyayalayas are established generally at the headquarter of every panchayat.
Lack of physical infrastructure violates the principle of Ubi jus ibi remedium, which means where there is a right there must be a remedy. Courts are a remedy for the rights given by the Constitution and lack of access to it makes justice illusionary.
Inefficient Policing: The death of father-son in June 2020 has shed light on how brutal police can be for a common person. In many cases, especially in rural India marginalised sections face police insensitivity when they lodge an FIR. E.g in rape cases, women are asked to repeat the trauma faced by her, similarly, instances of caste violence or discrimination go unreported because police refuse to lodge an FIR either because of their caste prejudices or because of the fear from upper class dominating in villages.
Police, especially if the victim is from the marginalised section, do not follow basic legal procedures. Poor and unethical policing is a serious impediment for victims of crime to access justice at courts. As District judge Dharmesh Sharma said while adjudicating in Unnao rape case “the investigation has suffered from patriarchal approach to brush the issues of sexual violence.” He further said that the Unnao Rape case suffered from “the multitude of restrictions and taboo within which many women in rural areas are brought up, grow and survive”. He further remarked that the investigation in the case does not appear to have been fair to the survivor of the crime and her family members.
Thus Courts may be inaccessible to one or both the parties to dispute due to many reasons but the most significant among them are Economic, Geographic, and Psychological barriers.
Constitutional and statutory laws for enabling access to justice
India is a welfare State and such a State must ensure equal administration and access to justice, which means that none shall be denied access to courts. Justice should not only be done, but it should also seem to be done.
Directive Principles of State Policy
Access to Justice as a principle for the State is given under Article 38 and 39A (added by the 42nd Constitutional Amendment Act) of the Indian Constitution. According to Article 38, the State has to promote a social order in which social, economic and political justice is ensured. Access to justice for the marginalised is the effective realisation of social justice. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, Dalits and tribals and deprived sections of society.
Further, Article 39A obligates the State to ensure that the legal system promotes justice and that the State must provide free legal aid so that justice is not denied to a citizen because of economic incapacity and other disabilities. In Hussainara Khatoon v. Home Secretary, Bihar Supreme Court held that Article 39A has made free legal service an inalienable element of reasonable, fair and just procedure and the right is implied under Article 14.
Fundamental rights function as a tool to achieve access to Justice.
Article 14 and 15
Article 14 of the constitution provides for “Equal Protection of the Laws”, this means that equal treatment only in similarly situated circumstances. This enables the State to enact laws meant specifically for the marginalised sections of society. Similarly as per Article 15, the State is not prevented to enact special laws for “Socially and Educationally Backward Classes”, women and children. This is a tool in the hands of the State to enact special laws to ensure that access to justice to the marginalised is not denied. It is only then we can ensure social justice as enshrined in the preamble.
Article 21 and legal aid
Legal aid means a free representation of a poor or weaker section in a court of law at States expenses.
The main purpose of legal aid is to provide the poor and vulnerable sections of society the required legal assistance to enforce their rights in a court of law. Legal aid fulfils the “equal protection of the law” under Article 14 of the Constitution.
Because of the Directive Principles and guarantee of Social Justice in the Preamble, the Legal Services Authorities Act was introduced to enable access to justice for the Marginalised. Access to justice has been recognised as part and parcel of Article 21. This legal aid is not only available to a victim but also an accused. In M.H. Hoskot v. The State of Maharashtra, Supreme Court ruled that free legal aid to the poor, at the cost of State even to an accused, who could not afford legal services due to poverty was part of fair, just and reasonable procedure implicit under Article 21.
Free legal aid ensures natural justice
Natural justice involves two basic rights. Right to be adjudicated by an impartial judge i.e. no one can be a judge in his case, and second is the right to be heard (Audi alteram partem). Lack of access to justice due to poverty, illiteracy violates this fundamental aspect of natural justice. Thus the State must ensure that every person gets fair representation before court irrespective of his means and knowledge.
Further according to paragraph 40 of Magna Carta “To no one we will sell, to no one we will deny or delay right or justice. Thus free legal age is an old concept which is yet to be fulfilled in spirit”.
Legal Services Authorities Act,1987
Given the duty under Article 39A, the Legal Services Authorities Act 1987 was enacted to provide free and competent legal services to the weaker sections of society.
The act establishes;
National Legal Services Authority (“NALSA”) at the National Level.
State Legal Services Authority(“SLSA”) at the State Level.
District Legal Service Authority(“DLSA”) at the District Level.
Taluk Legal Service Authority(“TLSA”) at the district level.
It ensures not only social justice but also economic justice in the sense that no person will be denied justice because of his/her economic capacity.
- NALSA plays a crucial role as it lays down policies and principles for making legal services available under the Act. It also frames the most effective and economical schemes to make legal services available under the Act.
- Most important function it performs is that it establishes legal aid camps in rural, slums or labour colonies with the dual purpose of spreading awareness among the weaker sections of their rights and encouraging settlement of disputes through Lok adalats.
- It also undertakes legal research with special reference to access to justice for the poor so that impediments to access to justice are identified and removed.
Justice through Lok Adalats is an informal method of accessing justice, in contrast to through litigation in an ordinary court of law, which is a formal method of accessing justice.
The Act establishes and organises “Lok Adalats”, which is one of the methods of Alternate dispute redressal mechanisms. Through lok-adalats, pending cases at any stage of judicial proceeding or cases at the pre-litigation stage can be referred to as Lok Adalats and are resolved amicably.
The Act gives statutory status to Lok-adalats. Lok adalats mark a departure from the traditional winning and losing system of Litigation, in which one party stands to gain and the other is at a loss to a system of settlement in which both parties to the dispute are satisfied. This ensures justice in its fullest sense.
A person entitled to free legal aid under the Act is exempt from payment of court fee and if a pending matter is referred to Lok adalats then court-fee originally paid is refunded. and is provided with what is called a LAC- Legal Aid Counsel.
Lok adalats have all the powers of a civil court and the award of such lok-adalats is deemed to be a decree of a civil court and is final to which no appeal lies. The presiding officer can be a judicial officer or advocates or even social workers.
Public Interest Litigation (PIL)
Traditionally, the right to move the supreme court for judicial redress was available only to those, whose legal right has been infringed. This is called the rule of locus standi. However, this results in denial of equal access to justice to those who are poor or socially and Economically Backward as they are unable to approach the courts. However, the concept of PIL diluted the concept of locus standi.
In PILs any member of the public or social group enacting bonafide could invoke the writ jurisdiction of the High courts and supreme courts, seeking redressal against violation of legal or constitutional rights of persons, who owing to their poverty could not approach the court for relief ( S.P. Gupta v. Union of India).
ADR and negotiations concept of restorative justice. This eliminates the issue of inadequate courts and the high cost of litigation.
When, only the rich can enjoy the law and the poor, who needed most, cannot have it, because, it’s expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy’s very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness William J. Brennan, Justice, U.S. Supreme Court.
The landmark case for use of PIL was Hussainara Khatoon case in 1979 in which a court-ordered release of nearly 40,000 undertrials languishing in the jails of Bihar’s Patna and Muzaffarpur. The verdict had instantly made Hingorani (petitioner) famous as hers was the first Public Interest Litigation (PIL) to ever be entertained in Indian courts.
National Commission for SCs, STs and backward classes
The Constitution of India provides for the establishment of a National Commission for Scheduled Castes under Article 388 and National Commission for Scheduled Tribes under Article 338-A and National Commission for Backward Classes under Article 338-B.
These commissions function to investigate and monitor matters relating to constitutional safeguards and other legal safeguards for SC, ST and Backward Classes and to evaluate complaints about deprivation of rights to SC, ST and Backward Classes.
The respective commissions while investigating any matter or complaint have all the powers of a civil court trying a suit and can summon and enforce the attendance of any person from any part of India, receive evidence and affidavits, issue summons for examination of witnesses and documents.
Further, the respective commissions have been entrusted to work for the protection, welfare and development and advancements of SCs, STs and Backward Classes.
These commissions have played a crucial role in formulating policies for the socially and economically backward sections and ensure that access to justice to these communities is not hindered.
UNDP access to justice project
- The Ministry of Law and Justice has been implementing access to justice for marginalised people with the support of the United Nations Development Programme (UNDP). The project aims to empower the poor and disadvantaged sections of society to seek and demand justice services. The project has covered 8 States namely- Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Uttar Pradesh.
- The project has been implemented with the help of NALSA and SLSA to ensure better access to justice.
- Under this project, several initiatives were taken to improve overall access to justice such as Judge’s training manual on laws related to marginalised people, field visits were initiated to 4 countries for studying good practices in justice delivery. Delegates from NALSA, SLSA and the department of justice were sent to Sierra Leone, Indonesia, South Africa and Malawi.
- The Justice Innovation Fund (JIF) was created for implementing innovative activities on legal empowerment of Marginalised people and for developing capacities of intermediaries who assist them such as Self-Help Groups, Legal Aid lawyers. But most important among them is spreading legal awareness by setting up school-based legal services clinics, paralegal workers, forming a network of Dalit women Sarpanches and by setting up community radios, helpline, provision of resource material on rights and laws and compendium on welfare schemes. This technology has been leveraged.
- Training of paralegal volunteers under the NALSA and training and sensitisation of young lawyers (Young Lawyers for Justice fellowship programme) was also implemented in select States.
Importance of access to justice
Justice is the core concern and one of the most fundamental aspects of any Nation-State.
As Lord Bryce said there is no better test of excellence of a government than the efficiency of its Judicial administration. It is the most fundamental aspect of law. Lack of Justice or lack of access to it leads to people taking law in their hands which further results in anarchy. This reflects the failure of the executive as well as Judiciary.
Justice is crucial for a Welfare State. A just State reflects that society is based upon the Rule of Law. The constitutional right of access to justice is inherent in the Rule of Law.
According to Rawls Justice is the first virtue of a social institution like truth is the first virtue of thought.
Justice is not a service by State, it is an inherent right of every human being. A Nation which ensures Social Justice means that equal treatment of citizens without any discrimination. It means the absence of privileges in favour of a particular person or community and upliftment of marginalised communities. However justice should not be mere formal in sense, it should be proportionate to the disabilities of a person. As Aristotle said, justice consists in what is lawful and fair, with fairness involving equitable distributions and the correction of what is inequitable.
Access to justice is an inalienable right of a citizen. Courts are the last bastion of hope for the marginalised communities and hurdles to accessing to courts and justice rob these people of basic humanity and dignity and make democracy illusionary. Today the world is talking about the shift of geopolitical power from the West to the East and India is regarded as an important element in the South and Southeast Asia, however, this would not be of much use if India is unable to ensure justice as enshrined in the Preamble of its Constitution.
- J.R. Earl. Johnson, Thinking about Access: A preliminary Typology of Possible Strategies
- A Theory of Justice, John Rawls, 1971
- Jurisprudence and legato theory, N.V. Paranjape
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