13 Legal And Institutional Barriers To Access To Justice

Miss Juhi Gupta

1. INTRODUCTION

Providing citizens with access to justice is a duty of the State. Access to justice refers to the arrangements made by the State to ensure that the people can avail the benefits of law and the legal system to secure justice. Assessing the degree of access to justice enables us to understand the chasm that exists between theoretical provisions and their practical application, to identify the barriers to access to justice, both legal and other institutional, and accordingly to seek remedies. The object of this topic is to throw light on the various reasons and factors impeding the access to justice for majority of sections of the society.

Access to justice needs to be understood on the basis of two criteria: equality before law and equality of access to justice. Equality before law refers to the substantive protection of law available to all, while equality of access to justice refers to the existence of sufficient procedures and mechanisms accessible not only to the rich and the powerful, but also to the deprived and the marginalised, to approach the courts and get justice. While the Constitution of India does provide substantive equality, equality of access to justice to all does not exist in reality. There are several barriers, legal and institutional as well as non-legal or extra-legal. Legal and institutional barriers refer to the faulty legal system, an insensitive enforcement mechanism, complicated procedural laws, costly and time-consuming litigations, inadequate judicial infrastructure, legal ignorance, the intimidating nature of the legal profession, a complex court hierarchy etc, while illiteracy, cultural inhibitions, poverty, social seclusion, bureaucratic and political corruption constitute some examples of non-legal or extra-legal barriers. The present topic is concerned mainly with legal and institutional barriers with occasional reference to other barriers in order to give a holistic picture. All these barriers either have a direct or remote impact on the access to justice.

Learning outcomes:

The module envisages to impart students insights that the impediments in the way of access to justice are not all grounded in socio-economic realities of the society, rather they may be part of the very institutional and legal structures. On this count students are expected to appreciate:

That the law itself, sometimes, create barriers to access to justice, That the operation of law may not be conducive to access to justice,

That legal institutions may have some systemic problems leading to creation of such barriers, and That the allied institutions may work inimical to the goal of equal and efficient access to justice.

2. LEGAL AND INSTITUTIONAL BARRIERS

1 Delay in justice delivery

Justice delayed is justice denied. Unfortunately India’s legal system is languishing due to chronic congestion at all levels of the judiciary. It takes several years before one’s case can be heard and even after a decision, there are multiple levels of appeal, due to which it takes much longer for the decision to attain finality and conclusiveness. The backlog of millions of cases at all levels points towards the shocking inadequacy of the legal system. This problem of inordinate delay itself is a great barrier to access to justice that can be attributed to several other causes like time taking procedures, frequent adjournments, insufficient courts, unfilled vacancies in judicial officers’ posts and ever increasing litigations, both genuine and non-meritorious. According to a recent estimate, although 1.32 crore cases are disposed off every year in subordinate courts, there is an influx of about 1.42 crore new cases. There is a grave imbalance between the caseload of courts and the resources made available to them.

2.2 lack of sufficient judicial infrastructure and technology

Lack of sufficient judicial infrastructure is one of the factors impinging the access to justice. The problem is more acute in the subordinate courts, which usually operate from cramped spaces with lack of sufficient personnel. The procedure for digitisation has not been uniformly implemented, and the maintenance currently is extremely haphazard. This often results in loss of documents, mistakes in scheduling and delay in enforcement of judgments. While the infrastructure is much better in the higher judiciary with digitisation, it will not have a great impact unless the same trickles down to the subordinate judiciary as well.

2.3 Under-Staffing

While the inflow of cases in the lower judiciary is ever increasing, there is no adequate increase in the number of judges to adjudicate the matters which is a major cause of delay in the disposal of cases. It is recently estimated that the judge-population ratio in India is 10:1 million which needs to be five times higher to effectively deal with the number of cases. Judges in the subordinate judiciary are overburdened with cases of several categories. Further, the frequent transfer of judges results in re-hearing of cases by the new judge and compounds the existing delay.

2.4 Lack of efficient judicial training

With the growing importance of specialised areas of law like human rights, intellectual property rights and cyber crimes, judges often find themselves inadequate to deal with the matters and do not have sufficient time to acquire training to adjudicate them. Lack of necessary expertise renders delay in pronouncing decisions. Further, there is no procedure in place to allow for accountability of judges in terms of their ability to decide cases in a neutral manner and be learned in the area of law that they are dealing with. This in turn affects their competence to decide matters effectively, which in turn becomes more serious given there is nothing in the law as regards the accountability of judges apart from their impeachment.

2.5 Procedural law providing opportunity to profit from delay

One of the major legal barriers for a common man to access justice is long drawn procedural delays due to lack of a mandatory ceiling on adjournments at each stage of the litigation. Adjournments are continuously sought by lawyers as well as the clients on various grounds.

Adjournments as a delaying tactic affects poor litigants more as they cannot appear in court often and cannot engage lawyers for a long period. Frivolous suits are filed, not due to a genuine cause of the client, but to harass the other party. Lawyers are supposed to be the officers of the court have an extended role in the court process due to the adversarial process followed in India; however, ironically there is no effective provision of law to hold them accountable for employing deliberate delaying tactics.

2.6 Overlapping jurisdiction

The existence of multiple courts often gives rise to the problem of overlapping jurisdiction, where litigants are unsure about which court to approach. Often disputes before the court relate to the issue of jurisdiction, which itself takes a long time to resolve, after which the main dispute remains to be decided. Further, there is often no uniformity in legal procedures across different forums regarding rules of evidence, lawyer involvement and the availability of appeals. This results in lawyers and parties being unprepared and asking for adjournments.

3. PROBLEMS IN THE LAW ITSELF

For economically and socially disadvantaged people, the fundamental needs are food, clothing, shelter, education and health. The enforcement of many such basic survival rights are caught in the webs of non-enforceable Directive Principles of State Policy, and the law and policy divide. Courts selectively refrain from interfering in a matter before it which involves a policy decision of the government. When the basic entitlements of vast sections of society do not find avenues for redress within the formal legal system, laws are rendered irrelevant for them. Thus the legal system does not accommodate the immediate concerns of people who are in need of justice. This is the problem existing in the law itself. In this context, it is unsurprising that Muralidhar J. has remarked that the economically and socially disadvantaged perceive the entire legal system as irrelevant for their empowerment and survival. Since it operates to oppress and disempower them, they have to devise ways to avoid it rather than engage with it and get lost in the procedural quagmire of the judicial system.

Further, in cases where the government is involved, the opposite party is often disadvantaged as the procedural laws grant certain exemptions and privileges to the government as a party and thus, create an imbalance between the contesting parties. Though these privileges are granted to avoid unnecessary litigation, they are utilised by the government to the disadvantage of the civilian party.In addition to this, substantive laws are often out-dated and out of touch with current realities, resulting in injustice to concerned parties.

3.1 Formalisation of law

Access to justice is also hampered if the procedural law is too complex and rigid, making it difficult for people to comply with the laws. The language of the law is too complex for ordinary people to comprehend. Laws are printed in English and translations in the vernacular languages are not always available. Even if the laws were in a language that people comprehend, the terms and legal jargon used is often beyond their understanding and tends to alienate them. Strict requirements of locus standi and principles of evidence often deter people from approaching the court. However, the judicial recognition of the principle of Public Interest Litigation has played a crucial role in relaxing the locus standi requirement, thereby increasing accessibility to justice for those who encounter numerous socio-economic barriers to approach courts.

3.2 Free legal aid is not all free

Free legal aid is no doubt a statutory boon to millions of people who belong to the weaker sections of society. This has been provided under the Legal Services Authority Act, 1987, which came into operation in 1995. Under the Act, women and children, members of Scheduled Castes and Scheduled Tribes, differently-abled people and people whose income is below rupees one lakh are entitled to free legal aid in the form of free legal representation at the cost of the State. However, in spite of this provision, access to justice is still hindered because legal aid lawyers who are appointed by the court often do not take the matters very seriously as they are not paid a decent fee for legal aid cases. Indigent people end up paying extra fees to the legal aid lawyers to pursue their case with commitment. Further, legal aid mainly covers court fees. But during litigation, the litigant has to bear many other costs related to transportation, documentation, file retrieval, scheduling and as some remark, the bribes paid to various categories of officials at different stages. To exacerbate the inadequacy of legal aid in India, pro-bono litigation is at a nascent stage and has not been able to remove barriers to access for indigent people.

4. LEGAL PROFESSIONALS

In most cases, lawyers are in a dominating position and are exploitative. Under the appearance-based payment mechanism, prolonging of cases ensures a source of continuous money-making and the mechanism incentivises delaying tactics by lawyers. Lawyers tend to provide little or no information to their clients and keep them in the dark as a result of which, clients are seldom equipped to check the status of their case and monitor its progress. The amount of fees charged is mostly arbitrary and there is no uniform transparent procedure to determine the payable fees. Ill-temper and professional high handedness force clients to maintain a distance except when it comes to making payments as and when demanded by their counsel. Especially in the subordinate courts, ill trained lawyers suffer from apathy and self-interest because of which the interest of justice for their client is marginalised. Judges at the subordinate level are so over-worked that they do not have sufficient time or power to control such dilatory tactics employed by lawyers. This questions the present day legal education system in India which needs to be reformed to impart good legal education with professional ethics and critical skills so that lawyers can use their time more efficiently and delaying tactics are minimised.

5. LACK OF LEGAL AWARENESS

Lack of legal awareness contributes majorly to delays in the justice delivery system. Due to the major role played by lawyers before the courts, most clients are quite clueless about the law and their rights in that regard. Therefore, parties will often not be able to identify when their lawyers are deliberately employing dilatory tactics and delaying their cause. Due to legal illiteracy, paperwork is very time consuming and it leaves clients perplexed. Illiteracy also hampers the confidence of lawyers and clients, which results in them being suspicious of the court process and reluctant to adopt any conciliatory methods.

Lack of legal awareness leaves most people clueless about the law and their rights and hampers their confidence in the legal system itself. It makes them more vulnerable to power mongers.

6. OTHER BARRIERS FOR ACCESS TO JUSTICE

Apart from the above mentioned legal and institutional barriers to access to justice, there are other barriers preventing access to speedy and impartial justice. Though they are related to geographical, economic, social and ethical factors they have a huge impact on the right to access to justice.

6.1 Geographical barrier to access Constitutional courts

When a case involves violation of fundamental rights or other rights, the matter is supposed to be filed in the High Court or Supreme Court. This is a serious geographical barrier to access to justice as most rural people cannot travel to the High Court or Supreme Court and afford related costs of litigation. As a result, important legal remedies such as a habeas corpus petition are beyond the reach of many people. Thus, the division of subject matter jurisdiction between the Supreme Court/High Court and subordinate courts needs to be revised, allowing for access to Constitutional remedies at the subordinate level. This involves beefing up the present strength of subordinate courts and training judges at that level so that they are equipped to deal with Constitutional matters.

6.2 Indigence as an economic barrier

Poverty is a great economic barrier which undermines the possibility of equality in society and equal access to justice. When the poor are excluded from the rule of law, their work and assets become insecure and unprotected. Due to their vulnerability they face many institutional obstacles while seeking justice against exploitation and deprivation. Prohibitive costs of litigation especially in the higher courts keep justice beyond the reach of indigent people. Further, since the litigation process is extremely lengthy, indigenous parties are severely affected as they often work for daily wages and cannot keep missing work to attend court.

6.3 Power imbalances

The socio-economic disparities existing in society also have their impact on the access to justice. The party who is socially and economically more powerful tends to intimidate and coerce the weaker party to withdraw the matter from the court or forces him to settle matters on terms that are not favourable to him. Witness intimidation and tampering also occurs which has a direct impact on the outcome of the case. These factors severely block access to justice. In cases where the government is involved, the opposite party is often disadvantaged as government lawyers are granted adjournments easily, thereby delaying proceedings. Disadvantaged litigants also have to face the issue of bias, especially in matters where the government is involved, as inexperienced judges may tend to decide the matter in favour of the government.

6.4 Corruption

Corruption, both at the institutional and individual level, acts as a powerful barrier to justice. At an institutional level, it results in abuse of court procedure and denial of access to justice. At an individual level, it denies rule of law, encourages nepotism and hinders impartial justice administration. Corruption makes justice a commodity to be bought and sold and not to be administered. The rich and unscrupulous foster corruption at all levels to get things done according to their specifications. It is the poor and honest who bear the worst in the process.

6.5 Mystification of law

The aforesaid factors taken together have contributed to the law, lawyers and judicial system acquiring a veil of mystery from the point of view of many sections of society. Lawyers are the means through which citizens access the judicial system – yet the power assumed by lawyers has engendered a general distrust of lawyers and the legal system by the general public. This has extended to the judicial system wherein courts are presumed to bed bias in favour of the rich and mighty, further deterring disadvantaged sections from accessing the judicial system. The intimidating structure of the law and judicial system in terms of the language of the law, power politics, complicated procedures and corrupting influences makes courts seem like “foreign lands” to majority of aggrieved persons or victims.

7.LEGAL AND INSTITUTIONAL MECHANISMS TO OVERCOME BARRIERS TO ACCESS TO JUSTICE

In order to overcome the existing legal and institutional and other barriers to access to justice, the legal system in India has evolved itself over the years to adopt a number of measures. Many amendments in substantive and procedural laws have been brought in to plug loopholes which acted as obstructions to ensure the equal access to justice. Judicial activism has acknowledged the concepts of Public Interest Litigation and social action litigation as powerful instruments to bolster access to justice for millions of marginalised citizens. The rights to basic entitlements of life and livelihood have been brought within the fold of the enforceable fundamental rights. Free legal aid has become a statutory right for socially and economically disadvantaged sections of the community and has played a role in mitigating the economic barriers to access to justice. The Alternate Dispute Resolution mechanisms, establishment of various Tribunals and conducting of Lok Adalats are to a great extent contributing to making access to justice a ground reality. Right to information is an invaluable statutory tool in the struggle for access to justice. Propagation of informal legal education fosters the legal empowerment of the common man. Pro-poor legal and anti-poor economic agendas are needed to include the majority of population into the justice delivery system. The government should shift its focus from minimum allocation of an annual outlay for the judiciary to a reasonable allocation required to remove the bottlenecks existing in judicial infrastructure.

SUMMARY

An overview of various factors impinging access to justice and various developments that are taking place in the Indian legal system to remove these barriers makes it clear that the Indian legal system still has miles to go to achieve a barrier free justice system that is available to all, irrespective of their social, economic and educational standing.

Web Resources:

• Justice S.Muralidhar, Access to justice, www.india-seminar.com.
• http://socialjustice.nic.in/
• http://mygov.in/
• http://india.gov.in/official-website-ministry-social-justice-and-empowerment

Home

• http://www.epw.in/