4 Formal Access to Justice

Dr. G. Shaber Ali

1. Introduction

According to law Justice means enforcement of rights as they are defined by various statutes. Administration of justice is one of the important functions of the State. Law and order within the State is maintained by administration of justice. State defines the rights and duties of its citizens. It protects the rights and enforces the duties. The State appoints persons to adjudicate the rights and duties and to secure their protection and enforcement. In this way courts come into picture. Slowly, a well organized judicial system developed in the society. It is the function of the judiciary to protect and enforce the rights of individuals and to punish the wrong doer.

2.  Objectives

1) To understand the concept of formal justice

2) To acquaint — with the agencies through which formal justice is done

3) To find out the remedies available in case of formal justice

4) To analyze the various methods in administration of justice

5) To learn about the ways in which the remedies are invited

6) To examine the hierarchy of authorities set up in administration of civil and criminal justice

3. Kinds of Justice System

System of justice delivery may be of two kinds namely adversarial or inquisitorial. The inquisitorial system is generally described as a system that aims to get to the truth of the matter through extensive investigation and examination of all evidence. The adversarial system aims to get to the truth through the open competition between the prosecution and the defense to make the most compelling argument for their case. In the present day the adversarial system of justice is also known as formal justice.

In formal justice administration system, people have access to state administered justice. In this system lawyers, judges and other administrative authorities plays an important role. Judges and lawyers are qualified persons. They will follow the procedure laid down by the law in disposal of complaints between the parties. State established dispute settlement authorities are termed as judicial, quasi judicial and inquisitorial in nature. Further there are special courts set up by the government to deal with specific matters in India. Special courts are established as per the need as well as the class of society (vulnerable group) affected. In this module an attempt is made to discuss these three important authorities in administration and access to justice. The following chart indicates the area of study.

4. Formal Justice System

A system based on predetermined substantive law that is operated through a procedure that is based on rules that are statutorily determined that are brought before the system dependent upon rules of evidence.

The term Judicial relating to judgment in a court of law or judge exercising his functions as per the law inclined to pass judgment basing on the evidence produced before them. In this method Access to justice is available to the victim before the court established by the State.

5. Hierarchy of Courts

First let us understand the composition, powers and functions of the highest court in India which deals with civil and criminal matters. In case of final and second appeal the hierarchy of civil or criminal courts is the same that is Supreme Court is the court of final appeal, High Court is the Court of second appeal and finally in case of first appeal the civil court is District Court but in criminal matters the court of first appeal is Sessions Court. The following table indicates the appellate courts and its jurisdiction in India.

5.1 Supreme Court:

The Indian Judicial System has the Supreme Court of India at its helm, which at present is located in the capital city of Delhi, without any benches in any part of the Indian territory, and is presided by the Chief Justice of India. The Supreme Court consists of a Chief Justice and 25 puisne judges. The judges of the Supreme Court are appointed by the President in consultation with the Chief Justice of India.

The Supreme Court of India has many Benches for the litigation, and this apex court is not only the final court of permissible Appeal, but also deals with interstate matters, matters comprising of more than one state, the matters between the Union Government and any one or more states, as the matters on its original side. The President of India can always seek consultation and guidance including the opinion of the apex court and its judges. This court also has powers to punish anybody for its own contempt.

The largest bench of the Supreme Court of India is called the Constitution Bench and comprises of 5 or 7 judges, depending on the importance attached of the matters before it, as well as the work load of the court. The apex court comprises only of various benches comprising of the Divisional benches of 2 judges, and the Full benches of 3 or 5 judges.

The Appeals to this court are allowed from the High Court, only after the matter is deemed to be important enough on the point of law or on the subject of the constitution of the nation, and is certified as such by the relevant High Court. In the absence of any certificate from the High Court, a person may, with the leave of the apex court, appeal to this court, by filing a Special Leave Petition (SLP) before the court.

A person or body may also file a Writ against the violation of Fundamental Rights granted under the Constitution of India, with the permission of the apex court. Certain writs are allowed to be instituted in the apex court directly, against the orders of the various Tribunals.

5.2 High Courts:

Every State has a High Court, which works under the direct guidance and supervision of the Supreme Court of India. High Court is the uppermost court in that state, and generally the last court of regular appeals.

Each High Court consists of a Chief Justice and a number of puisne judges. A High Court judge is appointed by the President after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the State. A High Court judge holds office till he attains the age of 62 years.

The High Courts are also termed as the courts of equity, and can be approached in writs not only for violation of fundamental rights under the provisions of Art. 32 of the Indian constitution, but also for any other rights under Art. 226 of the Constitution. It is having powers to supervise all its subordinate courts falling within the physical jurisdiction of the same under Art. 227 of the Constitution. In fact, when apparently there is no effective remedy available to a person in equity, it can always move the High Court in an appropriate writ.

The High Court hears appeals from the subordinate courts and tribunals. It also acts as a court of revision for the subordinate courts and tribunals. The High Court has powers to issue writs of habeas corpus, certiorari and others. Some High Courts also exercise original jurisdiction in civil matters and admiralty jurisdiction. Many times the High Courts have concurrent jurisdiction along with its subordinate courts, for effective remedy.

Most of the High Courts have different division benches in different parts of the respective states for speedier delivery of justice. For the purpose of disposal of its business, the Judges in the High Court, either sit singly or in benches of two or more judges in benches for deciding important matters.

According to the remedy (civil or criminal remedy) available to the victim justice system may be divided in to two categories. They are civil justice and criminal justice.

5.3 Administration of Civil Justice:

Civil justice is administered by civil courts. Civil wrong is an infringement of civil or legal rights of individual injury which does not affect the society in general and is redressible by monetary compensation. To avail civil remedy victim/aggrieved party has to approach the civil courts. In civil matters, the Judge has to decide whether civil rights of the plaintiff are affected or violated and if so, whether the victim is entitled to any relief. If the plaintiff is successful civil court may award a decree for enforcement of the claim of payment of debt, award damages1, injunction2, restitution,3 and specific performance4.

Civil courts in India have the power to try all suits of civil nature except those the cognizance of which is expressly or impliedly barred. The hierarchy of civil courts includes civil courts of original jurisdiction, civil courts of first appellate jurisdiction, civil courts of second appellate jurisdiction and final court of appeal.

5.3.1 Hierarchy of Civil Courts:

The highest court to deal with civil matters at district level is District Court5. First appeal is preferred to this court. District Court is primarily Civil Court to hear generally the appeals from the courts of original civil jurisdiction in the District and Talukas. However, these courts have been given original civil jurisdiction under many enactments. Both these courts have unlimited pecuniary jurisdiction.

Depending on the monetary jurisdiction assigned to the category of the court, all the civil litigation matters are filed before the courts of the original civil jurisdiction, either the Senior Division or the Junior Division. Most of the times there are more than one Judges of the Junior Division in every Taluka/Tehsil, and of Senior Division in every District. Sec. 6 of Civil Procedure Code provides that a court will have jurisdiction only over those suits, the amount or value of the subject matter of which does not exceed the pecuniary limits of its jurisdiction. District Judge and Civil Judge Senior Division can try cases like Testamentary matters, divorce cases, probate proceedings, insolvency proceedings

5.4 Administration of Criminal Justice:

Criminal justice is administered by criminal courts. Crime is a wrong against the community as a whole and is punished by the state. Criminal proceedings are instituted by the state. In criminal trial the magistrate is to decide the guilt or otherwise of the accused on the basis of evidence before him. Criminal trial results in conviction or acquittal of the accused. Criminal matters may result into infliction of punishment ranging from sentence of death to mere fine. The hierarchy of criminal courts includes criminal courts of original jurisdiction, criminal courts of first appellate jurisdiction, criminal courts of second appellate jurisdiction (High Court) and final court of appeal (Supreme Court). Following is the hierarchy of criminal courts at the district level.

5.4.1 Hierarchy of Criminal Courts:

The highest court at the district level to decide criminal matters is Sessions Court. Sessions court is primarily a criminal court, with the jurisdiction to revise the orders from the subordinate magistrates as well as to try serious offenses as prescribed by law. Beside the High Court and the courts constituted under any law, other than the Criminal Procedure code there shall be in every state, the following classes of criminal courts namely6:

• Court of sessions
• Judicial Magistrate of First Class and in any Metropolitan area, Metropolitan Magistrate
• Judicial Magistrate of the Second Class and

It is the duty of the State government to establish a Court of Sessions7 for every session’s division (District level). This court shall be presided over by a Judge, to be appointed by the High Court. High Court may appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Sessions. This court is having power to revise the orders from the subordinate magistrates as well as to try serious offenses.

Sessions Judge and Additional Sessions Judge may pass any sentence authorized by law, but any sentence of death passed by any such judge shall be subject to the confirmation by the High Court8.

In every district there shall be a court of Judicial Magistrate First class and Second class and such places as the State government may after the consultation with the High Court, by notification specify 9 . The Court of Magistrate of first class may pass a sentence of imprisonment for a term not exceeding three years or of fine not exceeding five thousand rupees or of both10. The Court of Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year or of fine not exceeding one thousand rupees or of both11. Finally the Court of Chief Judicial Magistrate (in every District the High Court shall appoint a Judicial Magistrate of first class to be the Chief Judicial Magistrate12) may pass any sentence authorized by law except a sentence of death or imprisonment for life or of imprisonment for a term exceeding seven years13.

In every district and in every metropolitan area the State government may appoint persons as it thinks fit to be Executive Magistrates 14 and shall appoint one of them as District Magistrate15. Executive Magistrates are appointed for trying of very minor criminal offences and quasi criminal matters, and generally report directly to and are subordinate to the Chief Judicial Magistrates.

The main difference between civil and criminal justice is not to be considered in terms of nature and consequences of the act but the legal implication which follows as a result of the act. In practice the difference is keeping in view the object, method of enforcement and impact on the individual and the society.

6. Tribunals

Apart from these judicial bodies that enforce the laws and rules laid down by the legislature and executive and also interpret them (the Supreme Court, High Courts and District Courts). There are numerous Tribunals (quasi judicial bodies) who are involved in dispute resolutions towards access to justice. Quasi judicial activity is limited to the issues that concerned to the particular administrative agency. An administrative agency must hold a formal hearing only when required by the statute. A formal hearing is a complete hearing with the presentation of testimony, evidence, and arguments. Quasi judicial action by an administrative agency may be appealed to a court of law, with a few exceptions. The plaintiff generally must exhaust remedies available through an agency before appealing against the agency’s decision in a case.

These quasi judicial bodies are the Tribunals and Regulators. Tribunals are constituted as per relevant statutory provisions and are seen as an alternative forum for redressal of grievances and adjudication of disputes other than the Courts.

Some of the important tribunals are, Central Administrative Tribunal (CAT), State Administrative Tribunal (SAT), Telecom Disputes Settlement Appellate Tribunal (TDSAT), Competition Appellate Tribunal (COMPAT), Armed Forces Tribunal (AFT), Debt Recovery Tribunal (DRT), National Green Tribunal (NGT), Tax Tribunals, Motor Accident Claims Tribunal (MACT), Income Tax Tribunals, Sales Tax Tribunals, Revenue Tribunals, Water Tribunals to solve the matters realign to water, interstate water disputes between one stat and another etc.

This kind of cases the tribunals hear and decide is limited to their specific area. Service matters are dealt by various tribunals at the Central and State level that is CAT and SAT. These tribunals are set up for the purpose of conducting various disciplinary actions against their senior and other employees, as well as for their grievances. TDSAT can hear only matters related to telecom disputes and not matters of armed forces personnel. So the area of operation of these tribunals are marked out at the beginning itself by the statute under which it’s constituted. NGT mainly deals with environmental matters. This tribunal is set up to deal with important environmental problems in protection, preservation and conservation of environment. The same hold true for the various Regulators like – Telecom Regulatory Authority of India (TRAI), COMPAT, etc. They regulate the activities of companies which fall under their purview as per the statute. The following tribunals are established to deal with various types of matters.

Thus, the Indian Judicial System is a mix of the Courts and the Tribunals & Regulators, and all these entities working together as part of an integrated system for the benefit of the nation. All these tribunals are under the superintendence of the High Court within whose territorial jurisdiction they function.

7. Other Formal Adjudicatory Forums

Apart from the Courts (judicial) and tribunals (quasi judicial) in administration of justice, there are fact finding bodies or investigating agencies involved in access to justice. These bodies can play an important role in justice administration. These are formal adjudicatory forums in justice administration. Government of India established various authorities from time to time depend on the need and necessity in our Indian society. For example to protect any issue/matter relating to human rights we are having authorities at central and state level like National Human Rights Commission (NHRC) and State human Rights Commission (SHRC). Other fact finding bodies are SC/STs Commission, Minority Rights Commission, Women’s Commission, Children’s Commission, etc. Investigation report is not binding on the government. These commissions have no power to enforce the report prepared.

8. Remedies available for seeking Formal Justice

Taking in to account the necessity and vulnerable group of persons affected the Parliament established various formal justice system to deal with specific subject matters. Public can avail appropriate remedy by approaching appropriate authority is administration of justice. These authorities will provide appropriate remedy as requested by the victim. General courts do not have expertise in specific matters, to remove the lacuna special courts are established. Following are some of the important special courts

• Family Courts – deals specially with family matters
• Fast Track Courts
• NDPS Court – deals specifically with narcotic drugs
• Labour Courts – deals with labour disputes
• Children’s Courts –some States established separate court to deal with matters relating to children. Juveniles are governed and dealt by some specific forum like Juvenile Justice Board
• Consumer Forums – matters affecting consumer/buyer and seller in the market place

Aggrieved person from the above special court can prefer appeal to High Court or to other higher courts as the per the law made by the Parliament for the time being in force.

9. Ways and Means of searching Remedies for Justice

Formal access to justice is systematic in its approach. Aggrieved person can approach the appropriate court as per the remedy he required. But the procedure followed in this system is time consuming and cumbersome. There is lot of delay in administration of justice. Following are the few challenges before the formal administration of justice system

• Nearly three crores of cases are pending before the Indian judiciary.
• Speedy disposal of justice – need to follow simple and speedy procedure in justice administration
• Need to improve the role of advocates – not to take unnecessary adjournments
• Judiciary – Judges need honesty, dignity and integrity in deciding the matters without any prejudice or bias

Summary

In this module we discussed about the role of State in administration of justice. We also learned about formal and informal justice administration methods.

Further there was discussion about appellate authorities in disposal of cases with their powers, jurisdiction and functions. We also learnt there are two types of justice administration that is civil and criminal justice. We verified the hierarchy of civil and criminal courts, their powers and jurisdiction.

We examined the quasi judicial authorities in access to justice with the help of various tribunals set up form time to time to deal with specific matters of concern.

Finally we dealt with inquisitorial access to justice mainly various commission established by the government to collect and investigate the matters of national and state importance.

REFERENCES:-

1. Misra SN, The Code of Criminal Procedure, (Central Law Publications, Allahabad, 11th Ed, 2004)

2. Jain MP, Indian Constitutional Law, (Lexis Nexis Butterworth’s., New Delhi, 6th  Ed.2011)

3. Tripathi Mani BN, Jurisprudence, Legal Theory, (Allahabad Law Agency, Allahabad, 1997)

4. Paranjape NV, The Studies in Jurisprudence and Legal Theory, (Central Law Publications, Allahabad, 6th Ed, 2001)

5. Takwani CK, Civil Procedure, (Eastern Book Company, Lucknow, 2001)

6. http://definitions.uslegal.com/i/inquisitorial-system/ visited on 21.08.2014 at 1.00pm

7.Sharma Naman, “Adversarial System of Justice”, 18th February 2013, at http://www.lawyersclubindia.com/articles/Adversarial-system-of-justice–5312.asp visited on 21.08.2014 at 1.00pm

8. http://legal-dictionary.thefreedictionary.com/Inquisitorial+System visited on 21.08.2014 at 1.10 pm

9. http://www.vakilbabu.com/System/JSystem.htm visited on 21.08.2014 at 1.20 pm

10. http://www.silf.org.in/16/Indian-Judicial-System.htm visited on 22.08.2014 at 1.00 pm

11. http://legal-dictionary.thefreedictionary.com/Quasi-Judicial visited on 20.08.2014 at 12.10 pm