This article has been written by Sushrita Mishra.

Introduction

“Justice consists not in being neutral between right and wrong but in finding out the right and upholding it, wherever found against the wrong”, as well examined by Theodore Roosevelt. The reason of so much intoxication of injustice in the society is not because there are anti socials who commit it but because there is a scarcity of active socialists who ought to respond such injustice. Rights and privileges will just continue to be the “show-pieces’’ in the society, if there is no access to it. In order to access it, people must be aware of the basic procedures under the guidance of the state. Injustice can’t be eradicated but only with effective access to justice and proper execution of legal-aid. Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. It is regarded as the core in providing access to justice by ensuring equality before the law, the right to council and the right to fair trial. It is a welfare provision by the state that ensures the enforcement of the provisions by providing people such as social housing with access to legal advice and the courts. Legal aid in India is governed by the Legal Services and Authorities Act, 1987. A number of delivery models for legal aid have emerged including duty lawyers, community legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to legal aid.

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Constitution as watch-dog of justice

Preamble

The significance of the preamble lies in its components which idealizes ‘justice’ in the zenith of its values. The term ‘justice’ in the preamble embraces three distinct forms: social, economic and political. Social justice aims at creating more equitable society based on equal social status. Economic justice aims at equitable distribution of wealth among the individual members of the society so that the wealth is not concentrated in the hands of few particular people. Political justice means that all citizens have rights in political participation providing universal adult suffrage and equal value for each vote. Fair administration of these objectives shall definitely lead to peace and harmony in the society. Not only the preamble, but also various articles of the constitution including article 14,21,22,32,39A,38,41,46,142,226,282 also signify the highest virtue of justice.

Article 14

Equality is a necessary concomitant of justice. The principle of “equal protection of the law”[1] under Article 14 provides a helping hand in terms of special provisions to those people who are at a less advantageous position so that they could avail the benefits of the law as their affluent counterparts are availing and equality before the law could be maintained.

The principle of audi altern partem has made it obligatory on the part of the state to ensure that every person gets a fair representation in the court irrespective of his means or knowledge. Hence free legal aid is implicit in Article 14.

Article 21

The case of Maneka Gandhi[2] changed the dimensions of justice widening the scope of Art.21, which now serves to be the “heart of all Fundamental Rights”, includes the provision of free legal aid. Any procedure established by law which does not provide for free legal aid for the poor and illiterate people to ensure fair representation before the court can’t be treated as just, fair and reasonable. In the case of Hussainara Khatoon v. Home Secretary[3], Justice P.N.Bhagawati declared that free legal aid is the constitutional right of every accused person who is not able to engage a lawyer and secure legal services on account of reasons such as poverty. The State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the need of justice so requires, provided the accused person does not object to the provision of such lawyers. The access to justice is so sacrosanct that even if a prisoner can’t be deprived of that[4]. The Apex Court reiterated its decision in the case of Sukh Das v. Union Territory of Arunachal Pradesh[5] and held that at the State’s cost is a fundamental right of a person accused of an offence.

In the landmark case of “Mumbai Terror Attack”[6], the Supreme Court held that this right cannot be denied to him on the ground that he failed to apply for it. The Magistrate is under an obligation to inform the accused about his rights and to inquire about his wish of legal representation at the State’s cost unless he refuses to take advantage of it.

Not only legal assistance but assistance by “competent advocates” is implicit of the provision as held in the case of Ranjan Dwivedi v. Union of India[7].Indigence should never be the ground for denying from trial or equal justice.

Article 32 And 226- Tools to Achieve Justice

If State fails to fulfil its obligations in providing free legal aid to those who cannot afford it, the aggrieved party can get it enforced under Art.32 and 226 of the constitution. The liberalization of the “the rule of locus standi” has also allowed the public-spirited persons and organizations to file cases on behalf of the aggrieved party for the redressal of the grievances of poor and illiterate persons. This has broadened the means of access to justice. Not only this but also the Directive Principles of State Policy enshrined in Part IV of the constitution acts as a torchlight for the government to achieve justice in its various forms. Art 38 clearly mentions that the State shall strive to promote the welfare of people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of national life.

The Indian in-justice system

The Judiciary is the watchdog of the constitution of India protects the fundamental rights of the people as enshrined in the constitution from infringement by any other organ of the State. Independence of Judiciary, being an inalienable basic feature of the constitution, is expected to remain unaffected by the pulls and pressures exerted by other branches of the State, citizens or interest groups. But people’s experiences fall far short of this ideal. Corruption in Judiciary goes beyond bribing judges including the payments made to the court personnel to slow down or speed up the trial or to make the complainant go back.

Justice delayed, justice denied

Indian courts have millions of pending cases, traffic challans, police challans, and cheque bounce making of nearly half of it. The government has been the largest, single party litigating before the courts, and has kept adding cases to the already-over-burdened courts, despite losing most, and then on losing has relentlessly taken them to the next court , much of this being avoidable[8]. Judiciary is no longer a hub for young talented lawyers and judicial officers because of the disparity of income and emoluments respectively. In the recent years, scandals about lack of integrity have besmirched the reputation of the judiciary- the Press Conference of four supreme court judges for the impeachment motion against the former Chief Justice Of India, Hon’ble Shri Dipak Misra, still being a threat not only to the judiciary but also to democracy.

Judicial corruption

Judicial Corruption in India is attributable to factors such as delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by the preponderance of new laws[9]. The most frustrating fact is that corruption is corroding even the highest judicial forum, i.e., the Supreme Court of India, The Supreme Court is turning a blind eye to the injudicious conduct of the colleagues. Nepotism, hypocrisy, plagiarism and prolixity being the evil confidants of the judiciary is earning notoriety. The Higher Judiciary has claimed crass superiority and independence to mask their own indiscipline transgression of norms and procedures highlighting self arrogance and professional arrogance in the judiciary.

Judges are granting bails in non-bailable offences for the greed of money as is evident from many cases. There has been an allegation that judges with doubtful integrity were elevated within the higher judiciary and campaign held for their impeachment.

Supreme injustice- sexual harassment case against the CJI 

Just because it is a Court of Law, one cannot always expect it to be just and fair. The opaque handling of the sexual harassment and victimization case against the CJI Hon’ble Justice Shri Ranjan Gogoi by a former woman employee of the Supreme Court has failed not only the victim but also the public by weathering the principles of natural justice. “The abuse of greatness is when it disjoins remorse from power”- as explained by Shakespeare. The decision by the in-house committee is an egregious instance of a hallowed institution abusing its own greatness by letting its power speak, and not the compassion for which it is renowned. It should have been manifested that the door of justice swings both ways and the CJI is not above the law too.

For these negative experiences, people have already realized that the rights exist but only on paper and standards of enforcement are weak. Hence, the poor, illiterate and ignorant people compromise on an easy hand to be a “victim of the situation” than being a “victim of injustice”. This is the reason people settle for a “near-darkness” over a “far-brightness”.

Reforms

A large number of vacancies in trial courts and failure of the Apex Judiciary in filling vacant High Court judges’ post still remain to be barriers of justice. Therefore, in order to tackle such issues and pendency “Fast-track Courts”, “Evening Courts or Morning Courts” were set up and have met with mixed success so far. “Mobile Courts” are being set up to bring justice at the door-steps of litigants of far-flung remote and backward rural areas. However, the Lok Adalats, an informal alternative mechanism has been a phenomenal success in tackling pendency, especially in pre-litigating matters, settling fresh cases before they become full-blown disputes and enter the Court. The Nation has already taken easy measures for the members of the Scheduled Castes, Scheduled Tribes, persons suffering from a disability (both mental and physical), victims of disasters, persons in custody and those having an annual income less than one lakh to provide free legal aid.

Law should not be confined to law students, people who choose the field of law as a career, being the lex loci, it applies to every single citizen in the country, and hence, everyone should be aware of the basics of law. The Apex Court has held that to provide free legal aid in true sense we need to have well-trained lawyers willing to perform free legal aid. It is possible if there are an adequate number of colleges with necessary infrastructure, good staff and teachers[10]. The system must improve their service conditions to attract persons of the right calibre to the judicial cadre system. The courtroom should revert to their noble foundational principles instead of being a “forum of pretension”.

Conclusion

“If there were no bad people, there will be no good lawyers”, this saying should be superseded by “if there will be no good people, there will be no good lawyers, too.” Hence, the reforms should come from within. Where human rights protection are lacking, marginalized groups are often vulnerable to abuses and significant challenges to realizing their rights, including within the formal justice system, the pillar of a strong rule of law will collapse soon. Transparency should b the “cause-and-effect” of the judiciary. Hence, it is the need of the hour that the future generations should come up to tackle our own issues because “injustice anywhere is a threat to justice everywhere”.

Endnotes

[1] Borrowed from the American Constitution

[2] 1978 AIR 597

[3] (1980) 1 SCC 98

[4] M.H.Haskot v. State of Maharashtra (SC)

[5] AIR 1986 SC 991

[6] Mohd. Ajmal Amir Kasab v. State of Maharashtra (2012) 9 SCC 1

[7] AIR 1983 SC 624

[8] Law Commission Report, 25 March,2008

[9]  Indian Corruption Study, 2005, Transparency International India

[10] State of Maharashtra v. Manu Bhai Pragaji Vashi,(1995) SC 730


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