Access to justice is one of the constitutionally recognized fundamental and
human rights. Access to justice means reaching justice easily by legal
proceedings at the appropriate time and place. Delivery of justice should be
impartial, and also take all necessary steps to provide transparent, effective,
fair and accountable service to all people irrespective of caste, colour, sex,
religion, economic status etc that promote access to justice.
Legal aid programs and campaigns are a central component of strategies to
enhance access to justice for every person. Access to justice is often used as a
term for access to the formal institution of the legal system by those in search
of a legal remedy either by individuals or collectively or by constitutional
challenges. It is essential today that the effectiveness of the rule of law
should go hand in hand with access to justice.
The Constitution of India has provided for Article 39A, Article 14, and Article
21 that guarantee the citizens the right to access to justice. Yet, access to
justice as a human right remains problematic in international as well as
In this article, I explore the reasons why access to justice is not being
delivered to many. The popular reasons include the low level of awareness about
the functioning of the legal system in India, high costs quoted by lawyers and
delays in passing judgements that make it heavily inaccessible to justice.
Access to justice and International Human Rights Laws
The Universal Declaration of Human Rights drafted in the year 1948 gave
universal recognition to these rights including the right of 'access to justice'
in the following manner:
Art.6: Everyone has the right to recognition everywhere as a person before the
Art.7: All are equal before the law and are entitled without any discrimination
to equal protection of the law.
Art.8: Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the
Constitution or by law.
Art.10: Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations, and of any criminal charge against him.
- Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
- Everyone has the right to equal access to public service in his country.
There are provisions in the International Covenant on Civil and Political
Rights, the European Convention and other regional conventions that have given
the importance of the right of access to independent and impartial justice. The
decision of the European Court on a like provision in the European Convention
dealt with this aspect in1and other cases.
Access to justice and Indian Position
In India, the citizens had always access to the King, right from the earlier
time according to our history. When the Indian Courts later absorbed the
principles of the common law of England, the right to access courts became part
of our Indian law, even long before the coming into force of our Constitution on
26th January 1950. Rights in existence before the Constitution came into force
were continued even after the Constitution because of Art. 372 of the
Two interesting cases that arose in the pre-independence era which would
indicate that concept of a non-derogable right of access to justice was
recognized and enforced by the courts in this country may here be referred to.
Among the early decisions was one rendered by the Bombay High Court in Re:
Llewelyn Evans2. In that case, Evans was arrested in Aden and brought to Bombay
on the charge of criminal breach of trust.
At the stage of granting remand of the prisoner to police custody, Evans' legal
adviser was denied access to meet the prisoner. It was held that he had no
jurisdiction to grant access despite the fact that s.40 of the Prisons Act, of
1894 provided that an unconvicted prisoner should, subject to proper
restrictions, be allowed to see his legal adviser in jail. The question that
arose was whether this right extended to the stage where the prisoner was in
Referring to s.340 of the Code of Criminal Procedure, 1898 the Judge held that
"the right under that provision implied that the prisoner should have a
reasonable opportunity "if in custody, of getting into communication with his
legal adviser for the purposes of preparing his defence". The other judge on the
Bench, Justice Madgavkar added that "if the end of justice is justice and the
spirit of justice is fairness, then each side should have equal opportunity to
prepare its own case and to lay its evidence fully, freely, and fairly, before
This necessarily involves preparation. Such preparation is far more effective
from the point of view of justice if it is made with the aid of skilled legal
advice – advice so valuable that in the gravest of criminal trials, when life or
death hangs in the balance, the very state which undertakes the prosecution of
the prisoner, also provides him, if poor, with such legal assistance".
Another instance of the courage and craftsmanship of our Judges in India,
particularly during difficult times in our political and legal history, is
provided in the decision in P.K. Tare v. Emperor
3. The petitioners, who
had participated in the Quit India Movement of 1942, challenged their detention
under the Defence of India Act, 1939 as being vitiated on account of the refusal
of permission by the authorities to allow them to meet their counsel to seek
legal advice or approach the court in person.
The Constitution of India through Article 32and Article 226 promises to provide
an effective mechanism and secure the fundamental right of every person to get
access to courts in India. These Articles are a speed track mechanism and
provide quick remedies. A person has the right to directly approach the Supreme
Court through Article 32 without having to go through the hassle of approaching
The Constitution is thus the protector and assurer of our fundamental right to
get access to courts. Similarly, the High Courts have power through Article 226
of the Constitution that ensures that a person can approach the High Court for a
fundamental right violation or any other matter 5.
In this regard, Article 32 is restrictive as compared to Article 226, as a
person can apply Article 32 only in cases of fundamental rights violations. But
through Article 226, the High Courts can be approached for any matter (matters
that do not necessarily revolve around fundamental rights violations).
Legal aid is a fundamental facilitator to ensure access to courts. The Supreme
Court time and again has taken progressive measures to promote access to justice
and has upheld the Constitution that guarantees this as a fundamental right. It
has done so by applying a twin strategy of loosening the traditional rules of
locus standi and relaxing procedural rules in such cases.
In many cases, the courts have taken up the initiative of appointing
commissioners and expert bodies to treat pro bono cases or cases where the party
needs representation. Essentially, the courts use the procedure of Public
Interest Litigation to address the grievances of the poor and weaker sections of
society. It is a tool that is used to ventilate public grievances where the
society as a whole, rather than an individual feels aggrieved. Apart from the
above, there are several sections of the Constitution that are interpreted and
read along with Article 32 and Article 226.
These include Article 13 which deals with laws inconsistent with or in
derogation of the fundamental rights6, Article 14 which deals with equal
treatment and equality before the law7 and Article 21 which refers to the
protection of life and personal liberty8which directly extends to the right of
access to courts and judicial redress in all matters.
Since a large number of people in India are poor, illiterate, backward or
oblivious, the State laid the concept of Alternative Dispute Resolution to
promote justice on the basis of equal opportunities. Lok Adalats9, Grama
Nyayalayas, Ombudsman10 and Legal Service Authorities under Legal Service
Authorities Act 1987 are part of this legal system which aims at rendering
social justice to such people and which is speedy and inexpensive.
Today the courts may ask the party to go for arbitration, mediation and
conciliation. Dr A.S. Anand, former Chief Justice of India, had wished that by
increasing the power of ADRs, the next century would be not of litigation but
rather of negotiation, conciliation and arbitration.11
The Indian legal system is not adequate to protect the legal rights of the poor
and people living in rural or tribal areas. These people find the system alien
and hence do not have access to justice. It requires expansion to reach these
marginalized people to access justice.
The customary idea of "access to justice" as understood is access to courts of
law which has become out of reach of those people due to different reasons for
example, poverty, social and political backwardness, illiteracy, ignorance,
procedural conventions and the cost. One solution is to educate the masses and
make them aware of complex legal procedures and rights and reliefs provided to
them under Constitution as well as under other statutes.
The cost of litigation is required to be reduced or made accessible for the
common poor man as it is not possible for him to bear the burden of the complex
and expensive process of litigation. In a country like India where the
adversarial model is widely practised, the expediency of the litigation process
has been compromised. The average time taken by a civil case to settle is around
This problem of delay is due to the extended role of advocates in the litigating
process. Despite being officers of Indian Courts, they do not have any
accountability towards the expedient disposal of cases. Similarly, there is no
accountability of the judges to dispose of cases as early as possible. More ADR
centres should be created for settling disputes out-of-court, especially in
rural and tribal areas.
Mediation and negotiation must now become part of constitutional schemes.
Ombudsman does not have the power to make its decision binding on the
Government. This limitation must be overcome; its decision should be binding on
Government. Thus, access to justice will become a human right for those persons
who need it really.
Written By: Sheeba Varghese
- Golden v. UK 1975(1)EHRR 524 and Airey v. Ireland 1979 (2) EHRR 305
- AIR 1926 Bom 551
- AIR 1943 Nagpur 26
- Constitution Of India. Art 32
- Constitution Of India. Art 226
- Constitution Of India. Art 13
- Constitution Of India. Art 14
- Constitution Of India. Art 21
- Lok Adalat is defined 'as a forum where voluntary effort aimed at
bringing about settlement of disputes between the parties is made through
conciliatory and pervasive efforts
- Ombudsman is a public sector institution, preferably established by
legislative branch of Government, to supervise the administrative activity
of the executive branch.
- Law Commission of India, Government of India, April 2009, 222th
Report on "Need for Justice-dispensation through ADR etc.", p. 13
, Assistant professor in law
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