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Access of Justice by Marginalized People of India

Access to Justice-Law is the means and justice is the end and to achieve that end the law must have legal system accessible to all. Access to justice gives life and meaning to law.

Injustice anywhere is threat to justice everywhere- Martin King Luther Jr.

Access to justice has different meaning in different societies. Even if defined differently, it always has inherent relationship with dispute resolution as the latter’s purpose is to do justice only. Hence access to justice is synonym with access to dispute resolution method provided by the state. This natural right didn’t require affirmative state action but with the emergence of welfare state it doesn’t mean only to litigate or settle the claim but also equal, affordable, quick access to the forums and enforcement of relief which is individually and socially just.

The Constitution provides substantive basis for this by guaranteeing certain fundamental rights such as, equal protection of laws, equality of status and opportunity, the right to life and personal liberty to all its citizens and on violation of these rights to approach the court. Even the Supreme Court has always tried to interpret the fundamental rights along with directive principles to make access to justice easier for the poor and underprivileged. However the real experiences show that access to justice has become inaccessible. The cases pending before the courts, high costs, complicated procedure, paucity of awareness etc. have paralyzed the legal system.

Introduction
With a population of 1.2 billion people, India is a multi-cultural, multi-linguistic, multi-religious and multi-ethnic secular country. India is also the most representative democracy which elects approximately 3 million people in the local self-government bodies - more than 1/3 of them being women. During last two decades, India has made steady progress on economic front and has achieved sustained growth of 8.2 percent for last 5 years but poverty has declined only by 0.8 percent1. India ranks 134 out of 187 countries on the UN Human Development Index.[2]

Article 39A (Equal Justice and Free Legal Aid) of the Indian constitution, under the Directive Principles of State Policy reads ‘The State shall secure that the operation of the legalsystem 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.[3]

Concept: Access to Justice-

Law is the means and justice is the end and to achieve that end the law must have legal system accessible to all. Access to justice gives life and meaning to law.

Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But, injustice makes us want to pull things down. When, only the rich can enjoy the law as a doubtful luxury, 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-

Mr Justice Brennan of the US Supreme Court

The phrase access to justice can’t be defined accurately without defining the term justice. The notion of justice evokes the cognition of the rule of law, of the resolution of conflicts, of institutions that make law and of those who enforce it; it expresses fairness and the implicit recognition of the principle of equality.[4]

The concept of ‘Access to Justice’ constitutes- First a strong and effective legal system with rights enumerated and supported by substantive legislations. The second is a useful and accessible judicial/ remedial system easily available to the litigant public. It therefore means that the ability to approach and influence decisions of those organs which exercise the authority of State to make laws and adjudicate on rights and obligations.

Access to justice is defined in the black’s law dictionary as the ability within a Society to use courts and other legal institutions effectively to protect one’s rights and pursue claims. It considers a potential system acquiring appropriate legal remedies within the Civil and Criminal justice fields. Judiciary, being an effective judicial system, has an important role in ensuring access to justice.

All human beings are born free and equal in dignity and rights and therefore should have equal access to justice when their dignity or their rights are infringed upon. However, deficient or discriminatory justice systems can undermine this basic human rights principle. When such systems cannot ensure equal access to justice for all, the vulnerable and marginalized suffer even more, and their human dignity is placed at risk.
The poor and disadvantaged sections of society are often victims of criminal acts including human rights violations.

Injustice and illegality tend to have a greater impact on vulnerable populations as they are constrained in seeking redress. Justice mechanisms can be used as effective tools to end this cycle of deprivation and rights violations while simultaneously reducing the risks associated with conflict. The Indian Constitution takes into account such issues and guarantees fundamental rights for all. Articles 14 to 32 included in Part-III of the Indian Constitution relating to the Fundamental Rights make it obligatory for the State to ensure equality before the law or equal protection of the laws within the territory of India. Article 32 deals with the rights to constitutional remedies including the right to move the Supreme Court for the enforcement of fundamental rights.

Meaning of marginalized groups and marginalization

Marginality is an experience that affects millions of people throughout the world. People who are marginalized have relatively little control over their lives and the resources available to them in any way. This results in making them handicapped in delving contribution to society. A vicious circle is set up whereby their lack of positive and supportive relationship means that they are prevented from participating in local life, which in turn leads to further isolation. This has a tremendous impact on the development of human beings, as well as on society. Marginalized people have no proper knowledge of law as well as, so they don’t get proper access of justice.

In general term marginalization describes the overt actions or tendencies of human societies, where people who they perceive to understand or without useful function, are excluded, i.e. marginalized. These people, who are marginalized, from a Group and Community for their protection and integration and are known as Marginalized groups.
Peter Leonard defines marginality as, …being outside the mainstream of productive activity and/or social reproductive activity.

Various marginalized groups and their problems - Most vulnerable marginalized groups in almost every society can be summarized as below-

Gender discrimination in access to justice:

The Indian Constitution guarantees equality for men and women. A variety of rights-based laws have been enacted which outlaw domestic violence, provision for equal pay, provide equal right to property and inheritance and also provide protection against sexual assault and harassment. Yet, the effective implementation of these laws continues to be a challenge. Under the Legal Services Authorities Act, all women are entitled to free legal aid irrespective of their financial status. However, they continue to face multiple barriers in accessing justice and obtaining redressal of their grievances. Violence against women is pervasive within the domestic and in public spaces. Crime against women has been on the rise in the last one decade. A total of 2.28 lac incidents of crime against women were reported in 2011 as compared to 2.13 lac cases in 2010.[5] Situation of poor and illiterate women is worse of, as they do not have information on their basic rights and find redressal difficult. Communities discourage women from seeking help and the ones who dare, face stigma and marginalization within family and society. In India, 86 percent of rural women depend on agriculture for their livelihoods yet one survey revealed that less than 10 percent of privately held land nationwide was in the name of women.[6]

People with disabilities-

People with disabilities have had to battle against centuries of biased assumptions, harmful stereotypes, and irrational fears. The stigmatization of disability resulted in the social and economic marginalization of generations with disabilities, and like many other oppressed minorities, this has left people with disabilities in a severe state of improvement for centuries. The proportion of the disabled population in India is about 21.9 million.
The percentage of the disabled population to the total population is about 2.13 percent. There are interstate and interregional differences in the disabled population. The disabled face various types of barriers while seeking access to health and health services. Among those who are disabled women, children and age are more vulnerable and need attention.

Schedule Castes-

The caste system ia s strictly hierarchical social based on underlying notions of purity and pollution. The marginalization of schedule caste influences all sphere of their life, violating basic human rights such as civil, political, social, economic and cultural rights.

Major proportions of the lower castes are still dependent on the others for their livelihood. They do not refer to caste but suggest a group who are in a state oppression, social disability and who are helpless and poor. Literacy rates among schedule caste are very low. They have meager purchasing power and have poor housing conditions as well as have low access to resources and entitlements.

Scheduled Tribes-

The scheduled tribes like the scheduled castes face structural discrimination within Indian society. Unlike the scheduled castes, the scheduled Tribes are a product of marginalization based on ethnicity. In India, the Scheduled Tribes population is around 84.3 million and is considered to be socially and economically disadvantaged. Their percentages in the population and numbers, however, vary from state to state. They are mainly landless with little control over resources such as land, forest, and water. They constitute a large proportion of agriculture laborers, casual labors, and plantation laborers, industrial laborers etc. this has resulted in poverty among them, low levels of education, poor health and reduced access to healthcare services. They belong to the poorest strata of the society and have severe health problems.

Elderly or Aged People-

Aging is an inevitable and inexorable process in life. In India, the population of the elderly is growing rapidly and is emerging as a serious area of concern for the government and the policy planners. According to data on the age of India’s population, in Census 2001, there are a little over 76.6 million people above 60 years, constituting 7.2 percent of the vulnerability among the elderly is not only due to increased incidence of illness and disability but also due to their economic dependency upon their spouses, children, and other younger family members. According to the 2001 census, 33.1 percent of the elderly in India live without their spouses.

Access to Justice and Constitution in India:

Apart from the Universal Declaration on Human Rights and International Covenant on Civil and Political Rights the Constitution of India, the living document and basic law of this country, provides substantive basis for access to justice. In its preamble only it stands for securing justice social, political and economic to all the citizens. It guarantees fundamental rights, in its Part III from Articles 14 to 32 to every individual. These rights are not absolute but they are protected under Article 13 of the Constitution which prohibits that enactment of any law which is inconsistent with the fundamental rights.

Article 39A of the Constitution of India which falls under Chapter 4 of the Indian Constitution enjoins upon the State the obligation to ensure that the operation of the legal system promotes justice on the basis of equal opportunity and provides for free legal aid by suitable legislation or scheme to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability. Therefore, the State under this provision has to endeavor to ensure that citizens irrespective of their status get equal access to the system of justice.

It Declares through Article 14[7] that:-

The state shall not deny any person equality before law or equal protection of laws within the territory of India.
So every citizen in India, irrespective of his social, economic and political stature, has accessibility to the courts in the same manner equally and indiscriminately by virtue of article 14 of the Constitution.[8]

Situation Analysis-
Despite the progressive measures, the ‘access to justice’ in India has been costly and beyond the reach of poor citizens. Delays in disposal of cases add to the woes of the litigants. Poor and marginalized sections of the society have not been able to fully claim their legitimate stake in the protections provided by the Constitution and legal system, because of which, the realization of justice remains a challenge.

Government’s efforts to take justice to the door step of people in the form of Gram Nyayalayas has met with partial success as only 7 states have notified 168 Gram Nyayalayas so far, of which only 151 have become operational. Implementation of Gram Nyayalayas Act is affected by several constraints in dispensing justice including the lack of infrastructure below the district level, difficulties in getting support from local administration-police, preference among lawyers to appear in district level courts than the Gram Nyayalayas, limited awareness among villagers about court decorum and limited incentives for judges to attend Gram Nyayalayas. Also higher courts do not refer small cases with limited jurisdiction to these institutions.

Access to Justice and Right to Free Legal Aid:

The concept of legal aid can be witnessed in the 40th paragraph of the Magna Carta, which is stated as under; To no one will we sell, to no one will we deny or delay right or justice.

Our constitution provides for free legal aid as a right, to persons who due to financial or any other reason cannot afford a counsel through Articles 14, 21, 39 A, already discussed above and Articles 22 (1) and 38[9] of Constitution of India. In a welfare State where the legislation is complex and the people from marginalized communities often find difficult to know what his rights are and how to defend them in a court, this right has utmost importance. It’s not only the Constitution but the case laws also have been developed to elaborate this right.

The Supreme Court expanded this right in MH Hoskot’s case where Justice Krishna Iyer declared If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal (to the Supreme Court) for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual ‘for doing complete justice.

Initiatives under Legal services and Act-

Constitution of National Legal Services Authority (NALSA)[10]:

  • Setup with mandate to provide free legal service to weaker section of society.
  • To organize Lok Adalat.
  • Every state, district and Taluka has state, district and Taluka legal Service authority respectively.
  • These authorities are responsible for implementing legal services in their respective areas.

Constitution of Lok Adalats:

  • Constituted under Legal Services Authorities Act, 1987.
  • Under the act awards made by Lok Adalats deemed to be decree of civil court and no appeal lies before any court against its award.
  • Any case pending before nay court or any dispute which has been brought before any court can be referred to Lok Adalats.

Access to justice is essential not only for human development but also for democratic governance, poverty reduction and conflict prevention. Between 2006 and 2008, UNDP partnered with the Department of Justice, Government of India to pilot aimed at strengthening access to justice. The project undertook a broad analysis of the justice sector including an identification of key challenges in the criminal justice system, informal justice systems, legal aid and legal empowerment. Based on the analysis and lessons learnt.

To Expand the Reach and Access of Justice:

As discussed above the present legal system is not adequate to protect the legal rights of 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 and for that certain suggestions are given below:

  1. The customary idea of "access to justice" as understood is access to courts of law which has become out of reach of above mentioned people due to different reasons for example, abject poverty, social and political backwardness, illiteracy, ignorance, procedural conventions and the cost. One solution is to educate masses and make them aware about complex legal procedures and rights and reliefs provided to them under Constitution as well as under other statutes. Cost of litigation required to be reduced or make it accessible for the common poor man as it is not possible for him to bear the burden of complex and expensive process of litigation.
     
  2. There exist several barriers to justice in the form of financial, geographic, linguistic, logistical, or gender-specific. Emphasis must be put on improving quality and quantity of justice in the form of better prepared defense attorneys, more citizen-oriented court staff, more reasonable hours, better information about the justice system and more no. of courtrooms in each district. Although procedural conduct and rules have already been laid down, what stands here as an important requisite that there is strict adherence on behalf of police authorities, judges, lawyers, law officers as well as protection of legal rights.[11]
     
  3. More ADR centers 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.
     
  4. The dialect of the law, constantly in exceptionally difficult and complicated English, makes it ambiguous even to the proficient or educated individual and this is the dialect that courts and legal counselors are comfortable with. Therefore, the language needs to be simplified so as to make it accessible for the common masses.
     
  5. In a country like India where adversarial model is widely practiced, the expediency of the litigation process has been compromised. Average time taken by civil case to settle is around 20 years. This problem of delay is due to the extended role of advocates in the litigation process. Despite being officers of the Court, they do not have any accountability towards expedient disposal of cases. Similarly there is no accountability of the judges to dispose of cases as early as possible.[12]
     
  6. To increase the physical availability of courts, we must increase number of High Courts and subordinate courts in the states. Moreover, the powers of Family Court can also be strengthened.26
     
  7. More accessibility to constitutional courts is a prime concern. For e.g., fundamental rights can only be filed in High Court and Supreme Court. Subsequently, for example, even petitions emerging out of issues, for example, vanishings, custodial violence, encounter killings or cases where the police can't be enacted because of different reasons, must sent or documented to the High Court. Perpetually, this includes go to the High Court, drawing in a legal advisor there and consistent follow-up. A considerable measure of time and cost is included in this procedure. Even habeas corpus petitions can only be filed in the High Court. Thus the division of jurisdiction between High Courts and subordinate courts needs to be re-examined.
     
  8. The poor and the marginalized rural and tribal communities who cannot afford eminent lawyers or legal experts seek justice through the informal system like Khap Panchayat which leads to their exploitation by such extremist forces flouting the rule of law and constitutional governance. So we must strengthen the Gram Nyayalayas to give force to constitutional values and ensure that such values infuse the content of true aim of adjudication-justice.[13]

B. The Fundamental Rights[14]

The rights that are basic for the freedom of humans so that they can live & enjoy as it for the proper & harmonious development of their personality are known as fundamental rights. By help of these fundamental rights they can access their rights.
These rights are applied universally irrespective of caste, race, creed, religion, color or gender. They are enforced by the courts subject to certain articles. There are six fundamentals rights which are as follows:
Category Consist of:

  1. Right to equality(Artilce14-18)
    (a) Equality before law and equal protection of laws(Article14)
    (b) Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.(Article15)
    (c) Equality of opportunity in matters of public employment(Article16)
    (d) Abolition of untouchability and prohibition of its practice( Article17)
    (e) Abolition of titles except military and academic(Artilce18)
     
  2. Right to freedom
    (a) Protection of six rights regarding freedom of: (i) speech and expression, (ii) assembly, (iii) association, (iv) movement, (v) residence, (vi) profession(Article 19).
    (b) Protection in respect of conviction for offences (Article 20).
    (c) Protection of life and personal liberty( Article 21)
    (d) Right of elementary education (Article21A)
    (e) Protection against arrest and detention in certain cases(Article22)
     
  3. Right against exploitation ( Article 23-24)
    (a) Prohibition of traffic in human beings and forced labour (Article23).
    (b) Prohibition of employment of children I factories, etc.(Article24)
     
  4. Right of freedom of religion (Article25-28)
    (a) Freedom of conscience and free profession, practice and propagation of religion (Artilce25)
    (b) Freedom to manage religious affairs( article27)
    (c) Freedom from payment of taxes for promotion of any religion (Artilce27)
    (d) Freedom from attending religious instruction or worship in certain educational institutions (Article28)
     
  5. Cultural and educational rights (Article 29-30)
    (a) Protection of language, script and culture if minorities (Article29)
    (b) Right of minorities to establish and administer educational institutional (Article30).
     
  6. Right to constitutional remedies (Article 32)
    Right to move the Supreme court for the enforcement of fundamental rights including the writs of (i) habeas corpus, (ii) mandamus, (iii) prohibition, (iv) certiorari and (v) quo war-rento (Article32)

Understanding of the barriers faced by marginalized communities in accessing Justice
Awareness is the main tool for understanding of our rights which are given by our constitution to us. In marginalized group there is lack of awareness. But in today’s scenario Government is helping such people with full potential by policies. Most of women are yet uneducated in our country and they have no any knowledge about their rights, some NGO are working for their rights. Recently Supreme court in famous judgment Shayara Bano vs Union of India And Ors.[15]

The Supreme Court on August 22, 2017 declared the practice of triple talaq as unconstitutional and stated that it was vocative of Article 14 and 21 of the Indian Constitution. The three judges on the 5 judge Constitution bench decided against triple talaq while two ruled in favor. Justices Kurian Joseph, R F Nariman and U U Lalit said triple talaq needs to go while CJI JS Khehar and Justice Abdul Nazeer backed triple talaq.

Such type of judgment is showing Supreme Court ‘s liberal view on access to justice for everyone.

Initiatives-
In the recent years, government has introduced a slew of measures to improve access to justice and justice delivery like setting up e-Courts under a Mission Mode Project for computerization of courts and delivery of e-services to stakeholders (Rs 935 crore), funding of infrastructure in subordinate courts under the State Governments and funding of Family Courts (approx. Rs 4870 crore). To reduce pendency and accelerate the disposal of cases, Department of Justice has asked High Courts to undertake a drive for this purpose.

  1. Justice Innovation Fund
    This was one of the important components of the Project, created for implementing innovative activities on legal empowerment of marginalized people and for developing capacities of intermediaries who assist them. Under this, 15 projects in the 7 Project States reached out to approximately 20 lakh people. Over 7000 paralegals and 300 lawyers were trained and sensitized through series of capacity development events. Quality knowledge products on legal empowerment were created; innovative Information Education and Communication (IEC) materials and community radio spots were developed and disseminated to raise legal awareness among marginalized communities.
     
  2. Young Lawyers for Justice Fellowship Programme
    A programme for training and sensitisation of young lawyers was launched in 3 States - Chhattisgarh, Jharkhand and Odisha with a view to encourage them to assist marginalized people in accessing justice. 60 young lawyers were selected, 20 each in Chhattisgarh, Jharkhand and Odisha through a competitive selection process. Series of training programmes were successfully conducted by 3 partner organisations (CLAP, ELDF and Manthan). Fellow lawyers were trained and sensitised on rights and laws related to marginalised sections, they were also provided inputs on developing their professional skills such as drafting, legal counselling, mediation and conciliation. The programme received active support from Legal Services Authorities, and with the help of mentors, young lawyers were supported in taking up community level activities such as conducting legal awareness camps, providing legal advice, counselling and conducting action research on specific topics etc.
     
  3. Legal Literacy Training of Sabla Girls:
    A need for providing legal literacy to Sabla (adolescent girls covered under the Sabla scheme of WCD) came up as a result of convergence between the two central ministries - Ministry of Law and Justice, and Ministry of Women and Child Development. It was decided to train Sabla girls of Madhya Pradesh and Rajasthan. A Rajasthan based organisation CECOEDECON was selected and they successfully conducted 4 trainings in 2 States – Madhya Pradesh and Rajasthan, where 200 Sabla girls were provided legal literacy trainings and exposure of justice sector institutions.
     
  4. Creation of Legal Literacy Materials for Sakshar Bharat Scheme:
    IEC materials (12 booklets, 10 motivational songs, 1 short film on legal aid and facilitators guide) on rights and entitlements of the marginalised people were prepared as part of the convergence with MoHRD’s Sakshar Bharat programme. Adult legal literacy will now become a part of the continued adult literacy programme. A handbook comprising the 12 booklets was jointly released by the former Hon'ble Minister for Law and Justice and the Hon’ble Minister for HRD on 18th November 2011 at New Delhi.
     
  5. Judges Training Module on Anti-Human Trafficking
    With the active support of the Maharashtra State Judicial Academy (MJA), the Project developed a module for training of judges on anti-human trafficking. Former Chief Justice of India, Hon’ble Shri. Justice Altamas Kabir, released the training module during the valedictory session of the International Conference on Equitable Access to Justice: Legal Aid and Legal Empowerment in November, 2012 Delhi. This module was circulated to Judicial Academies across the country.

The Way Forward/Key
The following are the two priority areas[16]:

  1. The Department of Justice, Ministry of Law and Justice, Government of India has signed up a Memorandum of Understanding with National Literacy Mission Authority (NLMA), MoHRD. Under the partnership legal literacy will be mainstreamed into adult education through the State Resource Centres (SRC) in Rajasthan and Uttar Pradesh.
     
  2. A Memorandum of Agreement has been signed up with Common Service Centers e-Governance India to mainstream legal literacy through CSCs in the state of Rajasthan.

End-Notes
[1] UNDP report 2017.
[2] Human Development Indicators, UN Human Development Index Report 2011 http://hdrstats.undp.org/en/countries/profiles IND.HTML
[3] Article 39A of the Constitution of India, 1950
[4] Rawl, J., A Theory of Justice, Edition 1997,Cambridge, Cambridge University press, at 11
[5] National crime record bureau,2013
[6] Food and Agriculture Organization, India Agricultural Census 1995/1996 and Livestock Census 1997 at 1(2000) New Delhi: Ministry of Agriculture, Government of India, Available Online. URL:http://www.fao.org/es/ess/census/wcares/2000indiaweb.pdf
[7] The Constitution of India, 1950
[8] Menon Madhava, N.R., Serving the justice needs of poor, The Hindu, December 3, 2013
[9] Article 22(1) provides that A person arrested should not be detained in custody without being informed of the grounds for such arrest and should not be denied the right to consult and be defended by a legal practitioner of his choice.
[10] NALSA website.
[11] United States Institute of Peace Press, Washington D.C., 2009, p. 86
[12] Hussain Bhat, Iftikhar, May. 2013, Access To Justice: A Critical Analysis Of Alternate Dispute Resolution Mechanisms In India,
[13] Guruswamy Maneka, Singh Aditya, 2010,  Accessing Injustice, The Gram Nyayalayas Act, 2008, Economic and Political Weekly EPW, Vol XLV No. 43, p.19
[14] M Laxmikant 5th, edition. P 7.3
[15] https://indiankanoon.org/doc/115701246/
[16] http://lawmin.gov.in/

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