14 Social and Economic Barriers to Access to Justice

Mr Saurabh Rana

1. Introduction

On the eve of Independence, we, the people of India made a tryst with the destiny to redeem each one of us in this country from deprivation and denial of access to justice. The Preamble of the Constitution of India prized the access to justice- social, political and economic to the citizens of India. However today, over a semi-centennial span later, it needs no social audit to ascertain that the vast masses of this nation are still reeling under the hunger, and people’s expectations have darkened into the doom of despair with the ever-deepening antimony between the proprietariat and the proletariat. Denial of ‘Access to Justice’ is probably the greatest injustice done to the marginalized, poor, excluded and the underprivileged sections of the society. Now, that the poor has ceased to be a matter of concern, agriculture is collapsing and suicides are escalating, it is high time that the doors to the justice be wide opened for the lowly and the lost of this country. In this module, we shall discuss the concept of ‘Access to Justice’ and its denial to the vast masses of this nation mainly due to the ‘economic’ and ‘social’ factors its various aspects

Learning outcomes:

• Knowledge of the concept of Access to Justice,
• Identification of various facets of Social and Economic Barriers to
• Access to Justice.
• Appreciating the approach of Government and Judiciary towards social welfare,
• Understanding the reasons behind Judicial over-reach, and
• Appreciating the approach of Lawyers towards legal aid schemes.

2. Access to justice

Justice is an institution for social engineering created by human agents to serve social needs and secure economic interests of the poor and downtrodden to the maximum extent possible by eliminating all the historical conflicts and frictions prevalent in the society. Expectation of justice is inherent in every human being. Denying access to justice to the people creates a ripple effect beyond the one directly affected. For instance, if the guilty police officials could not be appropriately dealt with in case of a custodial death by reason of social or economic barriers before the victim family, the belief in the establishment is shaken beyond repair. If a member of the deprived section cannot approach the court of law to get the discrimination meted out to him redressed, it will end up his falling deeper into the trench of various divides in the society.

Traditional concept of ‘Access to Justice’ is the access to courts of law. However, in the present context, access to justice is not confined to the access to the docket of a court but extends to fair treatment of the litigant irrespective of his socio-economic strata, in the precincts of the court of law and ultimately, to ensure that his case reaches at a just decision within a reasonable span of time.

Social and economic barriers to access to justice

Values and practice of social and economic rights run counter to the centuries old hierarchy and oppression in India where the principle of equality was almost unknown. The underprivileged segments of the society may be denied or may not get access to justice because either they are unaware of their rights or they are unable to agitate for their rights or may not have means and legal assistance to seek legal redressal of their grievances even when issues involved touch upon the basics of their lives1. Here, we shall briefly discuss the social and economic barriers to the realization of justice by the under privileged, indigent and helpless citizens of this country.

4. Social barriers to access to justice

The ground realities of human rights in India are far from satisfactory. For this unsatisfactory situation, blame is sometimes assigned to Indian tradition which is supposed to be anti-human rights. However, its leaders like Swami Dayanand, Vivekanand, Mahatma Gandhi and many others have successfully denounced such practices as corruption of the tradition. 2 The Constitution of India which lays down that the state shall strive to promote the welfare of the people by securing a social order in which justice social, economic and political shall inform all the institutions of life, is an instrument for the weaker sections of the society who have been historically denied access to justice due to their social standing. We shall first discuss here some of the main ‘Social Barriers’ to the ‘Access to Justice’.

4.1 Caste system

In India, within the precincts of a religion, there are other forces which are stronger than the bonds of that religion which keep people divided and sometimes bring them in identity with the people of other religions rather than those of their own religion. No wonder that India is considered as a country only of castes and minorities.

Membership in a caste is conferred by birth and is unalterable. Each caste is assigned the path which the members thereof must follow- the traditional notion of dharma. The inequalities in the lives were explained and justified by the theory of karma and rebirth. The balance of positive and negative values of one`s actions in previous lives was to be manifested in the station of his rebirth. Progress through successive rebirths to a higher caste was to be the result of properly fulfilling the dharma determined by one’s caste. So, the ideology behind the hierarchy justified and rationalized designation of lower castes to inferior status. It was in this background that a large faction of population was subjected to numerous disabilities such as denial or restriction of access to public facilities like wells, schools, courts and temples; residential segregation by requiring them to remain outside the village; deference in forms of language and standing in presence of higher castes; liability to render unremunerated labour for the higher castes and performance of menial services for them, etc.. Thus, through the caste system, a humongous population was systematically degraded and made to endure perpetual slavery with little hope of access to any notion of justice.

4.2  Illiteracy

It is a fact, rather shameful on our part, that in India more than 40% of the population suffers from illiteracy that is, around 50 crore people cannot read and write. For them, the benevolent aims and aspirations flowing from the Preamble of the Constitution, the limitations on the State action in the form of Fundamental Rights embodied in part III of the Constitution and the ideas expressed through Directive Principles in Part IV of the Constitution of India remains, largely, dead letters and any access to justice system, a distant dream.

4.3 Legal awareness

It is an irony that law does not form part of the syllabi at pre-graduation or graduation level of the education system of this country where law has a social purpose and has a great role to play in fulfilling the growing aspirations of the people. The inevitable result is that even if people are literate, they have no access to normative and institutional information concerning the legal system.

There is no compendium of all laws that are in force and not even an index. The reasons advanced by the government that the government press cannot undertake such voluminous work, that rapid amendments would make such publication regularly obsolete and that the costs involved would be too high3seem to be shallow. If people, beneficiaries and victims of law in urban India have such problem of accessibility to normative laws, one might well despair of communication of law to rural masses.4 This situation is further compounded by absence of any serious initiative on the part of State to publish and communicate the laws, by-laws, regulations and notifications etc. to the common man in the society. Legal illiteracy of the real beneficiaries of social welfare legislations and the constitutional scheme contributes to their ineffectiveness and consequently blurs the access to justice.

4.4  Adverse atmosphere

Practically, the trial court is the Supreme Court of the poor as he cannot move up in the hierarchy of the multi-tier judicial system. An inefficient and incompetent judiciary, an incompetent and corrupt ministerial staff, the diverse delaying tactics adopted by the litigants and their lawyers5, and the corrupt environment where even service of summons by the process staff is a source of rampant corruption creates an adverse reputation of judiciary especially, that of the sub-ordinate judiciary at the district level, in the mind of masses. Not surprisingly, the court’s ministerial staff which is comprised of the local population of the district sullies the image of the court and the judicial system for wresting money from unaware and impressionable people to get them favorable outcome of the litigation. This overall reputation of the judicial system spreads by way of mouth-publicity and ultimately creates a kind of barrier leaving the lower strata of the society devoid of any desire to access the doors of justice.

4.5 Practicing lawyers

Access to justice means not simply access to courts but also means access to dispensers of legal services i.e. the practicing lawyers who are considered to be the officers of the court. Legal practitioners in India are the second largest body of professionals in the world, well represented in the Indian parliament and various State legislatures.

It is a general notion in the society that the lawyers do not help much in arriving at just settlement of disputes. On the contrary, it is sometimes felt that they tend to make endeavors for prolonging the conflicts rather making them bitter. Courts are used to further, rather than solve disputes. Many observers have pointed out that the lawyers help their guileful clients to use the legal system as a weapon to be brought to bear on their opponents. Thus, even though the people in general do not usually subscribe to the values embedded in the modern judicial system, many of them use it for a purpose very different from what it was intended for. In this, they are sometimes actively helped by the lawyers.6 Hence, an anti-lawyer sentiment prevails in India due to their negative image as perpetuators of disputes which discourages the common man to approach a lawyer.

5. Economic barriers to access to justice

The Constitution of India is endowed with an economic mission expressed in terms of Directive Principles contained in part IV of the Constitution. It provides for right to adequate means of livelihood to every citizen; equitable ownership and distribution of material resources of the community for the common good of the people etc. However, it is an irony that justice in India is so costly, time consuming and tormented by ups and downs in the multi-tier hierarchical courts that the people at grass-root level are priced-out of the system. Locking people outside the justice delivery system7 because they cannot afford legal representation in the court of law would tantamount to degrading them both systematically and perpetually. Let us briefly discuss some situations where access to justice is denied to the depressed sections of the society due to economic constraints.

5.1 Poverty

Unlike the West, where people in general have reached a better level of economic and social well-being, in India most of the violations of these rights occur because of absence of such well-being. The question is not whether the social and economic rights are rights or not but the question is whether the conditions precedent for the realization of such rights exist or not. Unless those conditions exist, violation of rights cannot be effectively dealt with.8 Hence, a basic economic standing is required for raising voice to realize one’s socio-economic rights howsoever emphatically they are enumerated in the statute books or in the Constitution which is very much deficit in case of poor and marginalized people. Access to justice involves a costly and complex procedure of litigation. The exuberant court fee, various stamp duties, lawyer’s fee, commutation expenses and other logistic expenses and above all, loss of income for a daily wager, render the courts of law ‘inaccessible’ to a common man.

5.2 Access to legal aid schemes

Legal Services Authorities Act, 1987 was enacted to give a statutory basis to the legal aid initiative throughout the country. Various Legal Service Authorities are established at national, state and district levels under the Act for the purpose of providing free legal services to the deprived sections of society. Under this Act, free legal aid is provided to the citizens depending upon the criterion of their annual income. This qualification of income becomes irrelevant in case of persons belonging to the category of Schedule Caste, Schedule Tribe, Women, Children and physically handicapped etc. But many Legal Aid Societies and Associations do not function regularly and effectively. The deserving beneficiaries do not get quality services. Lack of any substantive concern on the part of the lawyers with the endemic problem of poverty, and instead using ‘aid the poor’ slogan only to generate more work or employment potential for their own kind, is a poor indicator of the professional’s potentiality to use and apply law in favor of the poor.9This breach of trust completely eradicates the credibility of the legal aid initiative in the eyes of its beneficiaries and rather operates as a barrier to access to justice which runs contrary to the very purpose of its creation.

5.3 Court fee

The government has retained the colonial system of imposition of court fee and indeed made the fees nearly exorbitant over the course of last fifty years. The 14th report of the Law Commission of India did not merely invoke Macaulay`s observation about the evil of the court fee; it went further, and by a thorough analysis of budgets on the administration of justice, it showed that the amount raised through thecourt fee was not merely adequate for meeting the expenses of administration of justice but resulted in surpluses which were appropriated to the general revenue of the state concerned. The 54th report of the Law Commission of India went out of the way to reiterate the un-honoured recommendations made in its 14th report.10However, this absurd tax on litigation in the name of court fee continues to make the legal system undemocratically expensive and poses itself as a significant barrier to the access to justice for a common man.

5.4 Economic hardship due to delayed disposal of litigation

In the delayed procession of a case, it has been a common phenomenon that both the parties wish the earliest possible outcome more than a distant favorable one. It is because their energy and resources are stuck-up in the ongoing litigation especially when the court has already passed an ad-interim injunction or a status-quo order in the case. Otherwise also, the trial court, then the automatic first appeal, often a second appeal and in some cases another appeal to a division bench within the same court, and in heavier suits, a voyage to the Supreme court; the list suffers, in its deck-by-deck progress, and in many cases bankruptcy beckons to both the parties at the end of it all. The pyrrhic victory of the successful suitor is not worth having, after the delay has done its worst for him. A disappointed or intoxicated litigant chases every remedy,wearing himself and his opponent out and frequently, the long legal pursuits lead to the discovery that the damsel of justice has played the vanishing trick.11 Hence, delay in disposal of a litigation has a ruining after-effect, irrespective of the outcome which again tantamount to a barrier on the access to justice.

5.5 Legal professionals

A few studies conducted at the district court level demonstrate a highly mercenary attitude on the part of practicing advocates. They regard their clients as mere instruments for making profit and commit all varieties of professional improprieties including bullying, deceit and pressurizing their clients. They obviate the very first tenet of professional practice.12 Ideally, lawyers should serve all segments of society and should also belong to all sections of society. But they serve mostly the upper and middle classes, and do not belong to the lower sections of Indian society. Only economically well-off people can avail lawyer’s services, particularly of the one who is professionally reputed.13 The stature of a lawyer is graded in proportion to the fee he manages to charge from his ‘clients’. There is no surprise that legal services market becomes essentially a seller’s market which in turn creates an economic barrier for the poor and indigent in getting a competent legal representation for ensuring him a real access to justice.

6. Instruments to ensure access to justice

As we have discussed above that in India, the question is not whether the Social and Economic Rights are rights or not but whether the Social and Economic well-being as a condition precedent for the realization of such rights exists or not. Creation of such a condition precedent requires positive action from the State not just in the form of policing but through the empowerment of the individual. The pattern of violation of Human Rights in India is a clear indicator that empowerment of the weak and vulnerable is the key to the improvement of the Human Rights situation. Such an empowerment is not possible without State support and action.14 Hence, there is a pressing need for a closer cooperation between the State and the society for the empowerment of the poor and the vulnerable. Here, we shall discuss some such instances.

6.1 Public interest litigation

Since last three decades, the Supreme Court of India has taken a lead in democratizing access to justice through judicial system. For providing easy access to the judicial process at the highest level, the Court has not only liberalized the procedural aspects like expanding the concept of rule of locus standi, invoking epistolary jurisdiction and taking suo-motto cognizance of news items from media etc. but also infused life into the dead letters of Fundamental Rights and Directive Principles enshrined in the Constitution of India and turned them into an effective instrument for protecting the interests of the oppressed. Consequently, there are many landmark judgments delivered by the courts covering a wide gamut of subjects, such as issues relating to custodial deaths, illegal detentions, prison conditions, right to shelter, rehabilitation of mentally retarded and physically handicapped persons, issues concerning the rights of the community like right to livelihood, right to clean and pollution free environment, maintaining the ecological balance, the rights of women and children, guidelines for inter-country adoptions, right to education, emancipation of bonded labour, right to better working conditions, protection against exposure to hazardous substances, protection of consumer rights, functioning of Lok Adalats, protection of ancient monuments etc. and also issues relating to public administration and public life. In the process, various segments of the population, oppressed and unrepresented in the past, such as under-trials, prisoners, women in protective custody, children in juvenile institutions, bonded and migrant labourers, under-paid workers, unorganized labourers, untouchables, landless agricultural labourers, slum-dwellers, pavement-dwellers and many more, found access to the justice administration system.15Realizing its role in social engineering, the Supreme Court expanded the poverty and rights’ jurisprudence mainly with the underpinning of Articles 14, 21, 22(1), 38 and 39A of the Constitution so as to include the whole gamut of socio economic rights provided in the Directive Principles of the Constitution, and brought the issue of prevention of oppression of the citizenry of this country to the forefront of the whole judicial discourse on human rights and constitutional empowerment.

6.2 Legal initiatives

India, as a welfare State, has strengthened the jurisprudence of access to justice by providing alternate dispute resolution mechanism, shortly called as ADR, through legislations and amendments to the existing legislations. The Legal Service Authorities are established at national, state and district levels under the Legal Services Authorities Act 1987 for the purpose of providing free legal services to the deprived sections of society. Under this Act, free legal aid is provided to the citizens depending upon the criterion of their annual income. This qualification of income becomes irrelevant in case of persons belonging to the category of Schedule Caste, Schedule Tribe, Women, Children and physically handicapped etc. Also through this Act, a statutory basis was provided to the Lok Adalats.. The institution of Lok Adalat utilises the expertise of judicial officers, serving or retired, in the resolution of the disputes by way of reconciliation. The award passed by the Lok Adalat is executable like a decree of the civil court and no appeal lies against it; hence, the litigation effectively comes to an end. In the same manner, the Arbitration and Conciliation Act1996, providing for a broader framework for arbitration and conciliation, in commercial disputes, has been amended to suit the needs of the present globalization era by incorporating the concept of foreign arbitration award in a practical manner. Consumer Protection Act 1986 was enacted to provide a speedy, effective and less expensive redressal mechanism for consumer grievances. Without there being any requirement for engagement of a lawyer to represent the case, the Act significantly opens-up access to justice for common man in consumer affairs. In the same manner, the Family Courts Act 1984 provides for the Family Courts to promote conciliation in family affairs so that a settlement may be reached before the commencement of the case. Apart from these, the two major procedural codes viz. Code of Criminal Procedure 1973, section 304 and Code of Civil Procedure1908,Order 33 and Order 44 providelaw for ensuring access to justice to the indigent and resource-less people. Apart from the above statutes, the state through other social welfare legislations like Protection of Civil Rights Act, Minimum Wages Act Equal Remuneration Act and Contract Labour (Regulation and Abolition) Act etc. protect the interests of the vulnerable class of the society and provide them the access to justice.

It is to be kept in mind that the empowerment of the weak and oppressed cannot be achieved solely by the litigation in the court of law rather it requires an understanding on the part of state that it must take certain positive steps to mitigate the perpetuated hardships and rigors on the depressed sections of the society. It is only through the process of law that the benefits which were denied to the backward sections of the society for centuries altogether can reach them again.

6.3 Reduction in Court fee

An argument is made in favour of the exorbitant court fee that it avoids a somewhat greater evil of frivolous and vexatious institution of suits. However, if we dig deeper in this argument, we find that the sole reason for unjust suits is unjust decision by the judiciary. It is just the dubious reputation of the whole system of administration of justice which breeds the institution of frivolous suits. Putting the court fee high may result in surplus of revenue for the state but it certainly drives away the needy plaintiffs from the doors of the court. Hence, there is a strong case for at least lowering, if not altogether abolishing this barrier on the litigation for the sake of poor and deprived.

6.4 Legal awareness

Even the most generally formulated Directive Principles will not easily yield the proposition that the State is under a duty to make law accessible to the citizens. It would require several generations of juristic efforts similarly to produce by sheer exegesis the proposition that the chapter on Fundamental Rights necessarily imparts a fundamental right to the citizens to have access to legal information.16 However, in the democratic set-up of this country, the regime of secret laws is clearly antithetical to the free access to justice. It must be the utmost urgency on the part of state to weed-out the obsolete laws and create a collection of all central and state laws in operation. Today with the aid of Information Technology, it is not an insurmountable task for the State agencies.

6.5 Other initiatives

Apart from the above instrumentalities, all those associated with the courts of law in any capacity, be it judges, lawyers, court staff, process serving agency and other paraphernalia, must understand that their task is never compared with that in a factory or in some other government office rather they are the trustees of the belief and faith of the common man in the whole establishment. Hence, the most sacrosanct duty on their part is to conduct themselves in such a manner so as to ensure that the common man is not scared of going to court of law for the redressal of the wrong committed against him, and those who have already entered into litigation get just decision in a reasonable span of time and on reasonable expenses.

It is imperative on the part of State agencies that the literates of the society become aware of their legal and constitutional rights and duties. There seems to be no pertinent reason why the fundamental aspects of the Constitution of India and of same major laws such as criminal law, family law etc. should not be made part of the syllabi at 10+2 level. Such education shall create a culture of knowledge of rights and consciousness of duties in the Indian society and shall act as a catalyst for providing the real access to justice to the common man in the street.

7. Conclusion

Respect for law and justice through the State establishment diminishes, when large segments of society do not get equal and effective access to justice. Asking for justice should not be like asking for moon as it is no crime to be poor or to take birth in a particular section of the society.

Fortunately, the Supreme Court of India is leaving no stone unturned in discharging its constitutional responsibility for which it has received tremendous popular support and moral legitimacy. No Apex court in the world has with such investment of high intendment, not only democratized the access to justice but also attained the human-oriented outcomes to ameliorate the weight of suffering of the downtrodden.

However in this process, the Indian higher judiciary has undergone an incredible transformation and acquired a dimension of autonomy by crossing-over into the realm of policy-making and (even) the implementation thereof. The inevitable result of this constitutional chaos seems to be the encouragement of political class to direct tricky issues to the courts; and at the same time, discouragement of people’s movement against such issues being sub-judice or decided by the court. Apart from this Judicialization of politics and politicization of judicial process, one may see the other perils associated with court’s marathon efforts to give juridical effect to the Directive Principles as the financial burdens which at times may (even) threaten the integrity of the whole budgetary process, administrative burdens and also the political burdens which may ultimately render its decisions futile for want of enforcement. However, the creeping jurisdiction of the Supreme Court remains justified by executive inaction, legislative indifference and the consequent bad governance rather the absence of governance.

The renaissance of the Indian judicial process has successfully shown the way to mould the voice of multitude for the purpose of articulation of one’s own powers. Now, it is the turn of the other organs of the State and the upper strata of the society to show-up to the expectations as the courts cannot do what the government and the society will not genuinely support. The power of contempt is an inadequate persuader to extract and enforce social welfare.

Lawyers as officers of the court of law must take the legal aid program with utmost sincerity as the ‘token-implementation’ of this social initiative would rather do more harm than it is intended to avoid. In fact, it would tantamount to punish the indigent litigant through the state machinery by spelling the end of his cause even before his case starts in the court of law.

Further, we as an integral part of the society must understand that the corruption of any tradition cannot be done away with over-night. Inter-religion conversions yield no result as the same corrupt practices almost invariably and automatically follow in the later religion. Hence, the only way-out is to unearth the best practices in the tradition and follow them; and the unfailing test for the best is the concern for the interests of a common man and respect for the rights of one and all.

It is better to live in a state of real despair than to have an unreal hope. The pressing need of the present day is the close co-operation among all the organs of the State with all those who matter in the society, and thereby creation of an environment in which the weak and vulnerable can be empowered. Independence must no more remain for them as ‘the transfer of powers from White to Brown bosses’ but as ‘the coming into existence of a State which Mahatma Gandhi envisaged for them before the independence, which strives for the welfare of its citizens and which provides ‘Access to Justice’ to one and all without any barrier’.

Web Resources:

• http://socialjustice.nic.in/
• http://mygov.in/
• www.iwcwtministry.org
• www.minorityaffairs.gov.in
• http://india.gov.in/official-website-ministry-social-justice-and-empowerment
• http://www.epw.in/