6 Statutory Provisions for Access to Justice to the Poor
Dr.B.S. Patil
1. Introduction
The formal justice system in India follows a ‘common law system’. The Judiciary plays a major role in interpreting and implementing the legislations. The foundation of the system lies in doctrine of precedent, where the judgment of higher courts binds its own subsequent judges as well as subordinate Courts.
The vibrant justice delivery system ensures proper enforcement of rights. The procedure should cater to the needs of the all kinds of remedy seekers. It also should provide meaning to the maxim ‘Ubi Jus Ibi Remedium’ (where there is a right, there is a remedy). Therefore, economic hindrance or economic disability should not be a cause for refusal to entertain the case. This module helps us in understanding the procedural law in view of needs of poor.
The justice delivery system in India is built on two procedural pillars, Civil Procedure Code and Criminal Procedure Code. The main objective of these pillars is to ensure justice at all cost. The legislature understood the difficulty of providing justice with standard procedure under different situations. Therefore the code creates exceptions against its own law by providing inherent power to all courtsi. This is a special power enjoyed by the Courts to ensure justice. The Court can usurp extra power to ensure justice; it can venture into grey areas, lacunas or ambiguities of law and interpret in favour of its rights.
2. Learning Outcomes
After reading this module, the reader shall be able to:
1. Understand the importance of protection of rights.
2. Learn various statutory provisions ensuring legal aid to the poor.
3. Appreciate the need to provide free legal aid to the poor.
4. Realize the professional obligations of lawyers in promoting legal aid to the poor.
3. Constitution and access to justice for poor
Justice is the foundation and object of any civilized society. The quest for justice has been an ideal which mankind has been aspiring for generations down the line and Justice is also the mandate under Indian Constitutionii. The Constitution of India has, in its Preamble, declared that one of the objects would be, “to secure to all the citizens of India, Justice-social, economic and political.” The Constitution also mandates the State to secure a legal system that promotes justice and ensure that the same is not denied to any citizen by reason of economic or other disabilitiesiii.
All have equal rights, but unfortunately, enforcement of the rights has to be through courts and Courts are not equal to all, as they are resource based, i.e. a person with better resource (money) can perform better with best utilisation of available service. In addition, the judicial procedure is very complex, costly and tardy, putting the poor persons at a detachment. In such case, there is a failure on the part of the State in performing the most important duties of a welfare state of providing judicial and non-judicial dispute-resolution mechanisms to which all citizens have equal access for resolution of their legal disputes and enforcement of their fundamental and legal rightsiv.
In consideration of above mandate the Constitution provided for safeguards against fundamental right violations. In the form of right to move directly to the Supreme Court or High courtsv. The rights conferred are
(1) The right to move the Supreme Court to enforce the rights conferred under Part-III.
(2) The right to move the High Court to enforce the rights conferred under Part-III and for any other purposes.
(3) The Supreme Court and High Courts shall have the power to issue directions or orders or writs,
4. Speedy process as a justice to poor
Speedy trial is the essence of both civil and criminal justice system. The speedy justice becomes more meaningful in case of deprivation of liberty of accused person in the form rejection of bail. Even though, the United States of America considers speedy trial as one of the constitutionally guaranteed rightsvi, such a right became a fundamental right under Indian Constitution only through the judicial interpretations.
The National Commission to Review the Working of Constitution (NCRWC), in its final report suggested for incorporation of speedy trial as fundamental rights, the suggestion even includedvii the right of everyone to have dispute resolved by the application of law, to be decided in fair public hearing before an independent court or impartial tribunal or forum.
Further the right to access to courts shall be deemed to be part of the right to reasonable, speedy and effective justice.
However, the Indian Judiciary is vocal as to speedy trial, especially in criminal processes. Justice P.N. Bhagwativiii said ‘It is a crying shame upon our adjudicatory system which keeps men in jail for years on end without a trial.’
Further the Mr Justice observed ‘… no one shall be allowed to be confined in jail for more than a reasonable period of time … we fail to understand why our justice system has become so dehumanised that lawyers and judges do not feel a sense of revolt at caging people in jail for years without trial.’
In another case Justice Krishna Iyerix, remarked, “Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’…
In Hussainara Khatoon v. State of Biharx held that where under trial prisoners have been languishing in jail for longer than maximum punishment. Their detention becomes totally unjustified and violates fundamental rights under Article 21.
In the case Katar Singh v. State of Punjabxi it was declared that right to speedy trial is an essential part of fundamental right to life and liberty.xii.
In the case of Khatri v. State of Biharxiii, the court held that the state is constitutionally bound to provide legal aid not only at the stage of trial but also when they are first produced before the magistrate or remanded from time to time.
In addition to those continuous observations, the court took up positive action and compelled as well as guided the legislature to come up with the suitable legislations to bring justice to the doorsteps of the weakest sections of the society. Public Interest Litigation is one of such shining example of contribution of Indian judiciary in protecting the rights of Indian citizens especially the poorxiv.
Access to Justice by Poor and Civil Procedure
The Civil Procedure Code has developed its own concept of poor. It has created provisions for the protection of right to access to justice of poor.
Indigent Person
The Civil Procedure Code provides for justice to poor in the form of indigent person. A person is exempted from the payment of court fee, if he found to be poor according the provisions the Code. i.e.
However, the court takes a serious view on the indigent status. During the pendency of the proceedings the Court keeps its right to re-examine the status of indigent person. Therefore, any properties acquired during the proceedings are taken into account during re-examination of status as indigent personxv.Similarly, the Code also provides for Appeal by an indigent person, which states that, xvi
The object and purpose of Order 33 and Order 44 of the Code of Civil Procedure are to enable a person, who is ridden by poverty, or not possessed of sufficient means to pay court fee, to seek justice. Therefore, it prescribes that the access to justice cannot be denied to an individual merely because he does not have the means to pay the prescribed feexvii.
In another casexviii, the Court analysed the provisions of the Order XXXIII and observed that Order 33 CPC is an enabling provision which allows filing of a suit by an indigent person without paying the court fee at the initial stage.
Therefore, if the plaintiff succeeds in the suit, the court would recover the Court Fee amount through the State from, any party ordered by the decree to pay the same.
On the other hand, if the suit is dismissed, then also the State would take steps to recover the court fee payable by the plaintiff (indigent person) and this court fee shall be a first charge on the subject- matter of the suit. Therefore, Order XXXIII is only a provision for the deferred payment of the court fees and this benevolent provision is intended to help the poor litigants who are unable to pay the requisite court fee to file a suit because of their poverty. Therefore, the payment of court fee, as the scheme suggests, is merely deferred. It is not altogether wiped offxix.
b. ADRS as Means to Access to Justice for Poor
Alternative Dispute resolution systems are means for achieving speedy and amicable dispute resolution between parties. With the above objectives, the legislatures introduced ADRSxx as a part of mandatory civil procedure through CPC Amendment Act, 2002. The insertion of Sec 89 brought a sea change in the concept of ADRS.
Sec 89 suggests that where it appears to the court that there exists element of settlement, which may be acceptable to the parties, the Court shall formulate the terms of the settlement and give them to the parties for their comments. On receiving the response from the parties, the Court may formulate the possible settlement and refer it to Arbitration or Conciliation or Judicial Settlement including settlement through Lok Adalats or Mediation.
It is one of the methods adopted by the CPC to avoid litigation. This process is adopted only if chance of settlement exists. These attempts by the Court to settle dispute ensures speedy justice to the needy, more importantly it also ensures justice within their means.
c. Suit against State
The Civil Procedure Code provides for an additional step before filing a case against State. It states that, no suit shall be instituted against government or public officer unless two months’ notice has been delivered at the government office stating the cause of action, name, etcxxi. The object behind such notice is to give the government sufficient warning of the case which is of going to be instituted against it and that the State, if so wished, can settle the claim without litigation or afford restitution without recourse to a court of laws xxii. In other words, the object of the section 80 is to give State the opportunity to consider its legal position and if that claim, if justified to make amends or settle the claim out of courtxxiii.
Therefore, the object of the notice is to avoid unnecessary litigation, settle the lawful and reasonable claim outside Court and it also provides an opportunity to poor to have an access to justice against the State.
Further CPC imposes duty on court in a suit against the government or a public officer to assist in arriving at a settlementxxiv. Therefore, it shall be the duty of the Court to make an endeavour at first instance, to assist the parties in arriving at a settlement.
So, in addition to the duty of the State to settle the dispute, it is the duty of the Court to encourage the settlement. Even though, it appears that these provisions are made to support the State and public officers, indirectly it helps the poor litigant fighting the case against the mighty State.
d. Compromise Decree
The Court is authorised to pronounce a valid decree on any lawful agreement or compromise between the parties during the pendency of the suit by which claim is satisfied or adjustedxxv. This scheme encourages the parties to continue to negotiate and make an attempt to settle the dispute in spite of pendency of suit. This provision encourages the parties to settle the dispute consequently cutting down the cost of litigation substantially.
6. Criminal Procedure Code and Access to Justice of Poor
The impact of the Criminal Justice System on poor is entirely different. The accused is denied of his personal liberty and delay in proceedings affects the family stability. In addition, the impact can also be felt on psychology of the accused. Under these circumstances, access to justice for poor becomes more relevant.
In the similar line, poor as a victim of crime will face different set of problems. His complaint may not be entertained, bail of the influential accused may be granted, leading to intimidation. Therefore, access to justice to everyone is very important right under criminal law. The impact of criminal proceedings on accused is discussed belowxxvi.
1. Prison violence – it is the most common problem faced in the prisons. Prisons are often dangerous places group violence is endemic and riots are common. Meek and first time offenders are tortured and made to do all the menial tasks. Failure to comply sees them sleeping in front of smelly and overflowing toilets in the night.
2. Criminalizing effect of a prison – With hardened criminals being around and in the absence of scientific classification methods contamination of first time, circumstantial and young offenders into full-fledged criminals occurs very frequently.
3. Homosexual abuse – As the prisons lodge people of same sex and being away from their natural partners make them to look for an alternative ways to satisfy their sexual urge. This often finds vent in homosexual abuses where the young and feeble are targeted. Resistance from the side of prisoners leads to aggravated violence on them. At times, prisoners are subjected to massive homosexual gang-rapes. Apart from severe physical injuries it may lead to spreading sexually transmitted diseases including HIV/ AIDS.
4. Health problems – Most of the prisons face problems of overcrowding and shortage of adequate space. Most of the prisoners found in prisons come from socio-economically disadvantaged sections of the society where diseases, malnutrition and absence of medical services are prevalent. When such people are cramped in with each other in unhealthy conditions, infectious and communicable diseases spread easily.
5. Mentally ill prisoners – Though miniscule, mentally ill prisoners constitute another percentage of population, which is largely ignored and forgotten by both the outside world and those inside. But given the nature of the illness and prevailing social attitudes, they form the most hapless victims of human rights violations. Even for a normal person, prolonged incarceration might lead to a mental breakdown,
6. Effect on the families of prisoners – Those imprisoned will not be able to look after their families; in turn it will affect the family in many ways. Sometimes they are forced into destitution with children going astray, this problem will be combined with the social stigmatization and ostracization. The combined effect will propel the children towards delinquency and exploitation.
Keeping above consequences in mind the Criminal Code insists to take every possible measure to dispose of the case within 6 months. No adjournments to be granted until and unless circumstances are beyond the control of judiciaryxxvii. It is also mentioned that, it is the responsibility of the judiciary to keep a check on under trial prisoners and bring them to trial.
Setting Criminal Procedure in Motion as an Access to Justice
Crime is a wrong against the person as well as society. The State has to work towards eradication of crime or at least it should provide for speedy justice. The access to justice gets a new meaning under criminal law, as setting the criminal law into motion itself is form of access to justice. The victim of a crime sets the criminal justice mechanism in motion by giving information to the police which is expected to be reduced into writingxxviii. Such victim providing information will be adorning the role of an informant and as an informant; he is entitled to a copy of the FIR free of cost xxix. However, sometimes the police officer neglect to act upon such information, under such circumstances the victim can directly report the offence and the fact of ‘no action’ from police to the Superintendent of the Police. On receipt of such information the superintendent of police is expected to direct investigation into the complaintxxx. If no action is taken by Superintendent of Police, then the complaint may be filed directly with the Magistratexxxi. On receipt of complaint, the Magistrate will in turn examine the complainant on oath and enquire into the case himself or direct investigation by the police before taking cognizance xxxii .The victim thereafter does not participate in the investigation except by being called to confirm the identity of the accusedxxxiii or the material objects, if any, recovered during the course of investigationxxxiv.
In addition to the rights of the victims and informant, the accused enjoy the right to be represented by the pleader of his choicexxxv. If the accused is not able to hire the services of an advocate for any reason whatsoever, including financial difficulty, the State is under the duty to provide the assistance of the lawyerxxxvi. Therefore, The Court interpreted section 304 of CrPC and held in Sukh Das v. State of Arunachal Pradesh that a conviction of the accused in a trial in which he was not provided legal aid would be set aside as being violative of Article 21 of the Constitutionxxxvii.
As a part of process of empowerment of citizen and making access to justice meaningful following information has to be furnished to the accused.
b. CrPC and Victims of Crime
The Code has dealt extensively with one part of criminal justice system, i.e. person Accused of crime. Being an accused, the Code provides him with several rights, more importantly the Constitution of India and judiciary of India has created comprehensive accused rights.
However, on the other hand, the impact of criminal justice system is also felt by the victims of the false criminal proceedings. The impact on the victims differs depending upon kinds of crimes, and impact could be varied such as physical, psychological and financialxxxviii.
It is sad to note that; only handful of provisions has been created for such fallacious proceedings under the Code. The Criminal Code provides for compensation for dubious and fallacious complaints, under such circumstances the Code authorizes magistrates to direct complainants or informants to pay compensationxxxix. Again under similar circumstances the Code empowers the court to order a compensation for making a false arrest of the innocent personxl. Lastly at the end of the criminal proceedings the court found the accused guilty, the can grant compensation to the victim and order the payment of costs of the prosecutionxli.
7. Access to Justice and Role of Advocates
Legal profession or Advocates profession is monopolistic in character. The whole society is barred from interference in the practice of law and this monopoly itself consists of certain high traditions, which all members are expected to upkeep and uphold.
Law is a Honourable profession and an Advocate acts in dual capacity as an Officer of justice or friend of the Court and he acts as a mouthpiece of the client, seeking justice. He is an integral part for the administration of justice. Therefore, a judge’s ability to deliver qualitative justice depends on the arguments of counsel. As it has been said, assistance from the Bar “goes a long way for the Bench to do justice”xlii
As the monopoly is ensured in favour of Advocates, the professionals were paying back the benefit from the ancient times by conducting the case of a poor litigant without reward. Such charity is exhibited, when so required by the Courtxliii.
The President of American Bar Association, emphatically mentioned that the American Constitution establishes the fundamental right of access to the judicial system. The Courts are designated as guardians of every person’s individual rights and have a special responsibility to protect and enforce the right of equal access to the judicial system. This onerous responsibility could be discharged only due to two important reasons:
(1) Public trust and confidence in the system overall, and
(2) A strong commitment by the organized bar to work with the judiciary to establish and demand compliance of judicial decisionsxliv
Therefore, if the judiciary is the guardian of the rights of the people, the organized bar and its lawyers are the foot soldiers.
The American Bar Association (ABA) has established 11 goals to be pursued in its quest of ‘Defending Liberty and Pursuing Justice. The second of these most important goals is ‘To promote meaningful access to legal representation and the American system of justice for all persons regardless of their economic or social conditionxlv.
The importance of the Legal Aid could be traced to the very tenets of the Magna Carta which was formulated well over eight centuries ago, where the beginnings of equal justice under the law were marked by the inscription in the 40th paragraph of the Charter as:
“To no one will we sell, to no one will we deny or delay right or justice.”
Advocates’ Profession and Legal Aid
The Advocates are expected to provide legal service. Legal service means help or assistance or free service in the field of law. The apex court has categorically stated in its various decisions that legal aid is not a charity but it is a duty of a welfare state. The provisions of Section 2(1)(c) of the Advocates Act, encompasses the following three ingredients;
Therefore Advocates enjoy the monopoly granted by the State through law, such monopoly is based on the assumption that lawyers perform a service to the public by assisting in the administration of justice being professionally equipped to do soxlvi
The Section VI of the Advocates Act provides for Duty to Render Legal Aid. This part contains only one section, which states that, Every Advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an Advocate owes to society.
Therefore, it is clearly said that providing free legal assistance to the needy and indgent person is the highest obligation Advocate owes to the society. However, it is also mentioned that the duty should be exercised within the limits of the economic conditions of the Advocate. Even though the exception mentioned is a proper, it may give rise to a lacuna to be exploited.
The concern shown was reiterated by the Supreme Court in the case of Kishore Chand v. State of H.Pxlvii. where the court commented upon the precarious condition in which legal aid is rendered by the professionals, it said that, though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused. Such service would be meted out with unequal defence, as it is in common knowledge that the youngster from the Bar who has either a little experience or no experience is assigned to defend such indigent person. Therefore, It is necessary that the senior counsel practicing in the Court concerned, volunteer to defend such indigent accused as a part of their professional duty.
Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010
It is still a bold attempt in the pipeline, where it is proposed for establishment of Legal Services Board on the lines of the Legal Services Board in U.K. suiting the Indian situation. The Act has been passed with the object of establishing the Legal Services Board and to regulate the activities of legal practitioners. In addition it also proposes to make provisions for the establishing of an ombudsman to deal with the complaints against the professionals and most importantly to make provision for providing legal services free of charge.
The Act also lays down its objectives, which includexlviii
First three regulatory objectives indirectly provide for legal aid and specifically third directly provides for access to justice. Promotion of public interest and implementing constitutional mandate include legal aid to the poor. Similarly ensuring access to justice provides legal aid to the basic needs of the citizens of India.
The new bill has dealt with the legal aid in CHAPTER IV of the proposed Act. It mentions that every Legal Practitioner shall be duty bound to give free legal services to the financially weaker consumers or clients. Financially weaker, is a person falling within the definition given under Section 12(h) of the Legal Services Authorities Act, 1987xlix.
As compared to Advocates Act, 1961, this proposed bill makes two significant strides. Firstly, it defines the financially weaker persons, secondly, it has taken away any kind of exceptions which were created in the Advocates Act, 1961.
In addition to differential treatment in prescribing duties, it has made major difference by providing regulatory objectives, which has to be implemented by each professional. The bill also established a regulatory authority to deal with the implementation of the objectives in the form of Legal Services Board.
The legal services Board has power to issue direction for the implementation of the regulatory objectives of the bill. These directions have to be implemented by the concerned Bar Councils.
8. Summary
The vibrant justice delivery system ensures enforcement of rights. The procedure should cater to the needs of the all kinds of remedy seekers. It also should provide meaning to the maxim ‘Ubi Jus Ibi Remedium’ (where there is a right, there is a remedy). Therefore, economic hindrance or economic disability should not be a cause for refusal to entertain case. This module helps us in understanding the procedural law in view of needs of poor.
The discussion in the module extends from civil and criminal procedure to constitution of India, which recognises the access to justice and it does provides few provisions relating to access to justice.
Even though, the provisions relating to the poor seeking justice is limited. The other provisions of the both codes could be studied and it could also be utilised in providing access to justice to the poor.
Another important aspect of the discussion under the module would be to understand the role of Advocates in providing access to justice to the poor. The State, Law and even Society have assured monopoly over the advocacy profession. In return of this assurance, professionals have to provide service to the State as well as Society. The module examines the provisions of law where the Advocates are expected to provide access to justice to poor.
REFERENCES:-
1. Kelkar,R.V. (1998) ‘Lectures On Criminal Procedure’, 3rd edition, Eastern Book Company: Lucknow.
2. Chandrachud,Y.V et al.(2002) ‘Ratanlal and Dhirajlal on The Code Of Criminal Procedure’,15th edition, Wadhwa and Company: Nagpur.
3. JUSTICE T.MATHIVANAN, ‘Legal Aid Issues, Challenges And Solutions –
4. An Empirical Study’ www.hcmadras.tn.nic.in/legalaid-issues.pdf
5. Role Of Advocates In Implementation Of Legal Aid Schemes www.legalserviceindia.com/…/1396-role-of-advocates-in-implementation-of-legal-aid-schemes.html
6. Murugesan Srinivasan and Jane Eyre Mathew ‘Victims and the Criminal Justice System in India: Need for a Paradigm Shift in the Justice System’, Temida, Jun 2007
7. S. Muralidhan ‘Rights of Victims in the Indian Criminal Justice System’ http://www.ielrc.org/content/a0402.pdf
8. R. Sreekumar, ‘Access to justice for under trial prisoners: problems and solutions’. www.humanrightsinitiative.org/…/Access%20to%20justice%20for %20u
9. Bkashi P M, ‘Mulla Code of Civil Procedure (Abridged), thirteenth Edition, Butterworths, New Delhi.