20 Barriers to Access to Justice

Mr Neeraj Teewari

Introduction

The challenges involving access to justice has befuddled an entire generation of lawyers, social activists, judiciary, policy makers and executive, who have proposed their solutions to bring out justice within the reach of the people. However, this relentless chase has led to achieving few milestones, though the ultimate result is still a distant dream. The problem of access to justice is not just legal, for it has wide and overreaching social and economic implications which have led to the problem that India faces today. Access to Justice is therefore a manifest reality, and the problem grows with every passing second, with major contributors such as poverty rate, illiteracy rate, and population rate at an ever increasing progression. It is due to all these reasons that major policy decisions which are taken for a certain year fail to address the problem which accelerates at such pace, that the very policy becomes infructuous.

Access to Justice

The words “Access” and “Justice” have wide and varied connotations. Access to Justice therefore cannot be treated as an end in itself but as a means to achieving social justice through the participation of all its stakeholders including the litigants, the administration, the executive, the bar and the bench alike. In the opening lines of the Preamble to the Constitution of India, the sole power has been vested in to the hands of “We the people of India” and have guaranteed to ourselves “Justice: Social, Economic and Political”. It is this Social Justice which has paved the way for the Nehruvian ideology of “Welfare State”, a concept which was borrowed from the socialist regime of the erstwhile CIS and was unanimously incorporated as a theme on which our Constitution was forged. It was this idea of welfare state which led to the formulation of Fundamental Rights which were guaranteed to the people of this Country. Justice, therefore encapsulates within its ambit, a multitude of rights, the denial of which results into the violation of the fundamental philosophy of the Constitution, which is to secure the rights to the citizen. Access to Justice in that sense is therefore given a restricted definition to enable the people to achieve remedies through informal and formal systems of governance and to ensure that this right to approach a forum is guaranteed. Access to Justice is therefore a commitment to ensure that the people have a right to have their grievances redressed, and a right to pursue their legal remedies, either in court proceedings, or other informal proceedings, so as to ensure that their rights are protected. It means the right of the people to effectively have access to their rights, and also the way to enforce them, and to approach a forum for adjudication, in the event of these rights being threatened or violated.

Impediments to Access to Justice can be broadly categorized into two denominations, namely:

1) Socio – Economic Barriers

2) Legal Barriers

a) Social barriers to Access to Justice

Social Barriers are those impediments which arise by virtue of the social setting in which the person resides, or has grown up or nurtured in. When the very society in which the person resides becomes the impediment in voicing his opinions, this leads to obfuscation of justice. India has always been a mix of two societies: India and Bharat. Bharat resides in villages which are heavily dominated by class politics and caste dynamics. The pristine system of Varna System in the Early Rig Vedic Era was grossly maligned during the later Vedic Ages which lead to the creeping of Caste Divides. Life for this segment of society was always full of challenges. Access to basic amenities was the biggest challenge of the days, which in turn resulted from the class divide. The rich grew richer whereas the poor were oppressed, and not given the basic amenities such as proper education, a healthy and balanced diet as well as a way to enhance their skills so that they could grow as a human potential.

Feudalistic Society:

It was on account of these systems coupled with the later invasions that a feudalistic society came into being. This feudal society required serfs and peasants who would till the farms for their masters, while their masters sat and reaped the benefits of their slaves, whereby their only task was to increase their holdings and consequently consolidate their stature in the society, while the poor were left in a state of acute hunger and oppression which resulted into a pitiable state of affairs. In India, the position of the poor was further marginalized because of the caste system where they were treated as Dasyus or Sevaks. It was by virtue of this social stigma that they were not allowed access to the villages, for they had separate entrances and were not allowed to draw water from the same well, as the Sahibs used to. Furthermore, they were not asked to be a part of any religious ceremonies or proceedings and were not invited or given a chance to represent the local bodies. They were denied the right to hold properties, and were enslaved into working for their masters. This psychological treatment was internalized by these people for centuries, and the change in rule only meant a set of new masters, for everything else was the same. They were socially ostracized in matters relating to management or administration, and their condition was no better than the condition of a beast of burden. It was on account of all these factors that they were denied the right to access to courts. In earlier times, the evidentiary value of a witness who was a Dasyu was also considered to be relatively lower to that of a person of high caste. It was on account of all these factors that the people were never made aware of their rights and the obligations of their so called masters.

In the later years, due to the inception of this caste divide, access to justice became all the more difficult. With the advent of the colonial rule, separate courts at Fort William and Calcutta were established. There were separate adjudicatory processes established which Governed the indigenous population as well as the British people. For the Dalits, however no forum for grievance was ever available, for the indigenous never treated them as one of their own, and the Britishers too owned up no liability towards the community, which though was sizeable in number, and was the bedrock of their economy, was marginalized and seldom catered to.

Lack of Education:

Furthermore, by virtue of the lack of access to education, the people are not even made aware of their rights that are constitutionally sanctioned to them. The people are never made aware of their rights as a property owner, or the value of proprietary interest, or the rights of a co-parcener in a family estate. It is because of this lack of awareness brought about by dearth of primary education, that most of the people are forced to live in the lives of labour and servitude. Most of the workers and their family members are often perturbed by the idea of education, even though it is a fundamental right, constitutionally guaranteed under Article 21 A[1]. In order to incentivize this, a series of changes were brought by the Governments by making access to education a part and parcel of the Right to Life.[2] Various schemes such as Ladli Lakshmi Yojana[3] and the Mid-Day Meal Scheme[4] were launched so as to promote the children to get free and compulsory education atleast upto the age of fourteen years which have met with great success, but a lot remains to be done.

Lack of Awareness:

Lack of awareness about Informal Access to Justice Mechanisms as well as about the ongoing works of the Legal Services Committees of the District, State High Courts and the Supreme Court of India, is one of the major reasons why impediments have occasioned. Furthermore, the lack of knowledge takes away the rights of the indigents to make use of the beneficial provisions of arguing party in person, in matters of civil nature. In cases of a criminal nature, the complainant or the aggrieved is mostly unrepresented, and his task is limited to that of a spectator after his testimony has been taken on record. Due to the lack of awareness, indigents rarely file protest petitions[5], if the police decide to drop off all charges against the accused. It is to this series of cases that the task assumes perilous proportions. This combination of lack of knowledge as well as awareness, dearth of familiarity with the court processes, as well as a general fear of court system creates the gap between the poor and the State enforcement agencies.

b) Economic Barriers to Access to Justice:

Another very important impediment to access to justice was the economic divide, which occasioned because of the social divide which already existed in the society. Access to Justice has never been a problem for one, who has access to all means and is financially sound. Access to Justice is a colossal difficulty for someone who has no recourse to financial resources and therefore had no recourse to pursue legal remedies, assuming that he was in fact aware about his rights.

A most glaring example of the effect of economic divide is evidenced in the Criminal Courts. It is a fundamental tenet of the Criminal Law that every man is deemed to be innocent until he has been proven guilty. The safeguards of protection of the interests of the people were dually incorporated in the Code of Criminal Procedure, 1973. Provisions such as completion of investigation within sixty and ninety days [6] were made to ensure that a person was not made to undergo the rigors of incarceration over and beyond the requisite period of detention, authorized under the law. However, the present population, the demographical analysis and the under trial prison statistics show that almost 75% of the under trials are those who belong to the weaker sections of the society, and therefore have little or no access to Justice. Moreover the acute problem of unawareness has escalated this ratio to major proportions, which has further eroded the concept of access.

A more fundamental force to reckon with is the system of corruption which has pervaded into the society. Various public offices work on corruption and bribery thereby making access to justice a difficult and unachievable reality. Corruption has been internalized at all levels, from getting a copy of the judgment to filing of an application, or to pray for an adjournment. Corruption therefore is and continues to be one of the gravest hiatus in justice delivery mechanism. Furthermore, a general social malaise which has crept up into the mindset of the executive functionaries is the element of a benefaction in the guise of discharge of their duties. Be it the Police or the Forensic Departments or the Prosecutors Office, the plight of the litigants is almost always ignored on a daily basis, thereby placing Justice at a distant horizon.

2) Legal Barriers to Access to Justice:

People are unable to obtain remedies because of a variety of reasons, which may or may not be attributable to their societal stature, or their economic independence, but which may also have a stark bearing on the quality of justice delivered by the legal system itself. Legal barriers to access to Justice are the barriers which can be attributable to the very legal system in which we operate. The problems are manifold, however an attempt has been drawn to look at Justice Dispensing problem from the view point of three very crucial stakeholders: The Litigants, the Courts and the Executive. The term Executive has a broad connotation and includes the police, the other executive agencies, including those which are responsible for carrying out policy operations, as well as those which are also known as ancillary agencies which are necessitated for the proper adjudication of the dispute.

Legal Impediments to Access to Justice is not a mere problem, but a vicious circle which takes in its ambit, every single cause, which cumulatively contributes to the denial of Justice. Although the appropriate mechanisms are place, yet, either due to the multiplicity of such forums, or the lack of coordination between various departments, access to Justice remains a distant dream. The first step to overcome these barriers is their identification. Some of the Legal Barriers have been laid down as under:

Procedural Barriers:

Existing lack of resources, mounting backlog and mismanagement accounts for the biggest procedural causes of delay in the criminal justice system. Internal management system still remains quaint with very little or no reliance on computers and modern modes of communication. In the context of Courts, the litigants had to bear with insurmountable number of delays, right from the stage of filing their plaints/complaints till the disposal of case.

The problem which causes the maximum amount of delay is the service of notice to the other party. The Code of Civil Procedure under Order V lays down effective modes of service, which are grossly manipulated and used to their own respective advantage by the parties or their counsels.The system of processing of issue, either through Court or through Dasti cause major concern to the parties, right from the stage of identifying where the disputants live, to bringing their legal heirs on record, in case one or more of the parties are dead or have been incapacitated to contest any further.

With specific reference to Criminal adjudication, the process becomes even more tedious. In order to call a witness to depose his/her statement, thereby compelling a witness’ appearance before the Court, elaborate procedures have been mentioned and recognized under the Code of Criminal Procedure, 1973. At the time of recording the evidence, the presence of the accused is mandatory, unless otherwise provided in the exceptions provided in the Code, where his personal appearance could be dispensed with. In other category of cases, unless and until the following people are present, the witness cannot be made to effectively depose, viz, the Judge, the Accused, the Public Prosecutor, and the Defense Counsel. More often than not, it is next to impossible to have everyone together at the same time. Here, the honest intention of the legislature to have a fair trial is perhaps defeated by the parties by taking adjournments, and instructing clients to do so, vitiates the very purpose of Justice, which is to provide an expeditious disposal of the case.

In other category of cases, summoning a witness becomes one of the most grappling of problems. The Code again provides for a duty which cast on every citizen of this country, to extend fullest cooperation, from the stage of information of commission of cognizable offence, to assisting the police in apprehending the accused, to deposing as a witness before the Court. More often than not, the Witness absents himself during the court proceeding, either knowingly or otherwise. Sometimes, because of the pendency of proceedings, the witness changes his address, but when the case is called up, the witness is no longer available at the address given by him at the time of investigation, and therefore the witness becomes untraceable.

The very Criminal Procedure then initiates proceedings by first issuing summons, and subsequently slapping a bailable and a non bailable warrant, before proclaiming the witness as an absconder, and attaching his property, or issuing a standing warrant against him, all of which infinitely delays the procedure to inexplicable limits. Although in the infinite wisdom of the legislature, it was thought to extend all procedural safeguards and to keep all checks and measures intact, yet in many of these proceedings, it is because of these elaborate safety nets, and their compliance, which has become a major source of problem.

Framing of issues seems to be another long drawn procedural step. At this stage, either under Order XIV of the Civil Procedure, or during a Criminal Trial, the powers vested in the Courts is absolute, in the sense that they can frame an issue at any stage during the trial, which includes right before the judgment is to be pronounced. The parties are therefore at complete liberty to assail averments after averments at any stage of the trial, which can then be treated as a separate issue involving a question of fact, or law or both, and which will then operate irrespective of the stage at which the trial might have reached. In most cases where there are many accused, and most of them are unnamed, the question really becomes whether they are to be tried in prosecution of common object, or as part of common intention, which has become one of the major causes, for cases to go back and forth. Since framing of charges is not interlocutory in nature, therefore all powers of revision under Section 397 are duly made available to the parties, and on the strength of the same, they can travel right before the apex Court.

Executive as a Stake Holder in Denial of Access to Justice

The Police Stations which are entrusted with the protection of the citizenry, maintenance of law and order, investigation of offences, are also entrusted with the task of securing public places, providing security cover to the dignitaries, and conduct witness protection programs as well. According to the elaborate guidelines rendered by the Hon’ble Supreme Court of India in the matter of Prakash Singh v. Union of India, (2006) 8 SCC has unequivocally expressed its anguish at the state of affairs, and the nature of job, which has not only demoralized the police force, but which is also very disincentivizing.

The Police Manuals which regulate the practice, procedure, roles, functions and responsibilities of the police officer are archaic and need systematic improvements, which are to be kept for a long period of time. The salaries need to be periodically revised, and the job needs to be made more incentivizing in order to attract the best human potential. This multiplicity of tasks was further frowned upon by both the Law Commission of India as well as the Maliamath Committee Report on Criminal Justice Administration.

Every Police Station has to maintain many registers, from daily diary recordings, to keep minute to minute track, to inventory of all the weapon holders including their license numbers and year of expiry, to crime register, to offender register, to other registers for summons and warrants which are to be handed over in their jurisdiction, to the seizure register. With grossly under – staffed areas, on any given day, there are atleast three people who spend their entire time in making entries. Other officers are to be divided for a host of other duties. There are two more officers whose task is to visit the Court every day, and take the list of warrants and summons which are to be delivered in their local jurisdiction every day.

The police are required for a plethora of purposes and stationed at places which are too remote and grossly under connected. There are very few attempts made to provide a refresher course to the police officials, or a review of their physical fitness. There were steps to initiate technological interface in every such Police Station, but because of the low education level of the Police Constables, the Computers have been lying in dust for a sufficient period of time.

With specific reference to criminal adjudication system, it takes years to procure an investigation report, or a medical report, or a forensic science laboratory report. Due to severe resource crunch, there is no FSL Unit in many districts, because of which in heinous offences, most of the records have to traverse all the way to the State or Divisional Head Quarters, which are already reeling under many such similar cases. Often because of this delay, material evidence is lost, or destroyed or becomes adulterated, because of which the results become inconclusive by way of efflux of time, and because of which an easy getaway is afforded to the accused. The agencies are well conversant with all the flaws that have been existing, but lack of political and administrative will has led to the lapse of this system, where the ultimate loser is the humble litigant.

Lack of Structured and Informed Preparations by the Advocates

A lack of legal knowledge, in substantive as well as procedural terms is seen on part of the advocates. Advocates do not prepare case facts well and that reflects in their pleadings as they often remain clueless when judges put questions to them. Most of the times, advocates are single handedly the most worrisome cause of litigation. Advocates are often seen shuttling between courtrooms due to their cases running simultaneously and therefore ask for adjournments in one or the other case. Other stages that delayed the cases were absence of advocates and, of course, innumerable adjournments given for a variety of reasons. Frequent and avoidable adjournments due to the tactics of litigants and their lawyers are major causes of delay. The state of affairs at the Legal Aid is pitiable. The lawyers are not incentivized, and are asked to represent clients who are never in a position to bear the expenses. Because of a huge number of such cases, and the fewer number of lawyers to represent them, the problem has assumed considerable proportions in providing access to justice as directed under Article 39 (a) of the Constitution of India, which has also been voiced time and again in a catena of historic pronouncements, notably Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 93

Solutions to the Challenges of Access to Justice

Although Post Independence, the system continuously and steadily improved. The series of changes brought in the First Amendment Act delivered the promise which the welfare state held, and brought to the farmers the rights to hold property and acquire own property. Various relaxations were also given in order to bring about parity in stature and creation of a level playing field so that their right to work could be protected. The Directive Principles of State Policy granted to them the rights to Equal Pay for Equal Work, Parity in Pay, and Commitment to ensuring Just and Humane conditions of Work. Furthermore, by virtue of a mixed Legislative Enactments along with Judicial Activism, new rights were read into the Right to Life, such as the Right to Earn Livelihood[7], the Right to Health and Well Being[8], the Right to Basic Standard of Living and Dignity at Work Place[9] and the Right to Free Medication[10] which defined the new India.

Taking a serious view of the caste divide, the Constitution explicitly forbade the archaic practice of Untouchability[11] and made it a criminal offence.[12] By virtue of the social strata that the people came from, early child marriages were rampant and corrupt practices such as dowry and bans on widow remarriage had led to serious deploration of the society. The first such measures to curb these evil malaises had long been started by the Joint efforts of Sir William Bentick and Swami Dayanand Saraswati, Swami Vivekananda and Raja Ram Mohan Roy. However, the system continues upto date and has resulted into serious cases of hampering individual choices, unwanted pregnancies at young ages, and denigration of the institution of marriage to only a contractual arrangement. It was also on account of these social malaises that social communities started taking a firm Stand and formed their own courts called Khap Panchayats or Kitta Panchayats which resulted into large scale human rights violation. A specific ethical code was to be abided by all the members of the society or the sanctions imposed had to be enforced against the erring members. Most of the laws are still openly flouted and access to justice remains a distant dream for most of such individuals.

With the inception and focus on the alternative modes of dispute resolution, and by taking recourse to the ancient forums of dispute resolution such as Panchayats, Lok Adalats and Gram Nyayalayas, a serious attempt has been made to eradicate the system of court pendency and backlog of cases. The Supreme Court has too, as a protector of constitutional provisions, has repeatedly stressed that the Right to Free and Compulsory Aid mentioned under Article 39(a) is a serious commitment to ensure that justice is not only done, but is also manifestly seen to be done. In a series of cases, the Supreme Court has held that an attempt should be made to eliminate dispute right in its inception, so that the poor families are saved from the ordeal of trial. It is on account of these factors that the momentous role played by the Judiciary, cannot be estimated. Furthermore, through the formation of CILAS[13] and the subsequent enactment of the Legal Services Authority Act, 1987, lakhs of indigents have been brought closer to justice.

Realizing the need to put an end to the instances of forced labour and bonded labour system, the Supreme Court in its historic ruling in the matter of Bandhua Mukti Morcha v. Union of India[14] categorically exposited the right to a dignified life to all the workers who are in the unorganized sector, and have been physically and mentally exploited over the years. The Supreme Court also protected the rights of the indigenous tribal populations, and held that the term right to life is more than mere animalistic existence.[15]

The Legislature too has shown laudable attempts to preserve and restore the dignity of those who were known as Harijans, and have been oppressed from centuries. The Prevention of Atrocities to SC/ST Act is a welcome change, along with the Prohibition of Untouchability Offences Act, 1955. Access to Justice endeavours manifested in the form of Gram Nyayalayas Act, 2008, the Legal Services Authority Act, 1987 and the phenomenal role played by the Legal Services Authority Act as well as the Legal Aid Officers who have been instrumental in bringing justice to the doorsteps of the indigents and the impoverished.

With countless awareness programs being introduced through telephonic, electronic and print media, the people are being made aware about their Rights, and how to enforce a remedy in case there is any threat to those rights. The Ministry of law and Justice has organized various campaigns through Street Plays, simulations, radio channels, etc. to bring about awareness of the problem, so that the people can have better access to the instruments of justice. Furthermore, the Government has also taken steps to educate people about the informal modes of dispute resolution such as pre – trial mediation, negotiation, or judicial settlement. For petty trifles, reference to Lok Adalats and Gram Nyayalaya has been made the order of the day.

Furthermore, through Mobile Courts, and Electronic – FIR Registration procedures have made justice within the reach of the common man. The digitalization process of Justice has reduced a lot of problems for a common man. However, a lot remains to be done in this context.

The National Informatics Centre is committed to bring about new technological advancements so as to eliminate the tedious number of visits of a litigant, once his/ her case has been listed. The Police Stations too, have started the digitalization drive, to do away with the copious amount of paper-work involved in preparing registers, and to only focus on the task at hand, i.e. solving the crime. There are various ways in which Access to Justice is being achieved at every level, yet India is at a stage where it needs to carve out an effective and achievable policy, which speeds up the process of dispensing of justice.

REFERENCES:-

1. RV Kelkar, The Code of Criminal Procedure, 1973: A Commentary, 27th Indian Reprint, 2014.

2. Ratanlal Dheerajlal, The Indian Penal Code, 1860, Lexis Nexis Butterworths Wadhwa, Nagpur, 2014.

3. Mulla, The Code of Civil Procedure 1908, 2014.

4. The Maliamath Committee Report on Criminal Justice Administration Reforms.

5. Report of the Committee on the Implementation of Legal Aid Scheme.