“ACCESS TO JUSTICE AND PUBLIC LEGAL AWARENESS”
Ms. Shivani Yadav
BA.LL.B. 3rd Year Student, S & S Law College, Indore
Abstract- Access to justice is indeed a human right as well as a fundamental principle of the rule of law. Every human being is born free and has equal access to justice. Degraded or prejudiced justice systems can jeopardize these fundamental human rights principles.
Independent and unbiased judiciary is a key characteristic of the Indian Constitution, in which courts have the power to preserve the Constitution and give protection to the rights of everyone regardless of their financial capabilities. This paper aims to show what variables amenable in making access to justice so challenging in India, as well as why it seems to be an implausible vision.
Any effort towards access to justice would begin with legal awareness and comprehension. The public legal awareness is MAGNI MOMENTI in attaining justice, because justice is arduous to achieve until one is apprised to its rights. To endow legal assistance to such under informed masses, legal aid provision has been enshrined in the Indian constitution, it is drafted there as a legal obligation of the state. Legal assistance sheds light on procedural fairness, and the elimination of societal discrimination against the poor. The paper analyzes the veritable practicability of these bookish rules and laws.
Owing to the fact that, when people would be unable to access justice, then the value of Justice would start diminishing. Hereupon, it is the need of the hour to emphasize on efficient and reasonable implementation of existing laws and make the access ingenious for each section of the society.
Keywords: Justice, Access to Justice, Court, Awareness, Constitution, Rights.
"DENYING ACCESS TO JUSTICE IS INJUSTICE"
- Dr. Mohammad Abad Alrazak 1 JUSTICE
Justice is the key to eradicating poverty because it equips the poor with the tools they need to confront the basic causes of deprivation and the ability for access to justice is critical for fair development outcomes. Access to Justice, simply means Individual's reach to court to obtain justice. The term "ACCESS TO JUSTICE" is used to emphasize two major purposes, one is that people can defend their rights and resolve disputes with the general support of the state and second, the system must be used equally for all. In the Indian context, ensuring justice and people's exposure to it has been prioritized. It lays forth the pathway for the state to take in terms of development, bearing in mind the Constitution's core ideals.
It is one of the predominant contemporary issues to make people able to reach Justice.
These also pertain to the nature of various rights, the number of Courts, the quality of justice, independence of judiciary and so on. Whereas, the role of Legal awareness is crucial in gaining access to justice because it empowers individuals to pursue justice, transparency, and protection of rights at all levels.
2 JUSTICE: PIVOTAL SEGMENT OF SOCIETY
Justice is the most significant and widely discussed function of a State. It is the foundation of human existence. Justice comes from the Latin term Jungere, which translates "to bind or tie together". Apparently, Justice is the notion of regulating or harmonizing human relationships in society so that each individual can access their rights and obligations. The supreme law of the land i.e. The Constitution of India itself in its preamble speaks of JUSTICE.
Justice would only be established, when each citizen would have access to justice. Justice and access to justice are the core tenet of any welfare state. Acquiring the appropriate information about the law, recognizing a legal problem and determining what to do about it, getting the right counseling from a lawyer, and comprehending the outcome all are some exemplars of access to justice.
The terms "Access" and "Justice" have a wide range of interpretations. Since independence, the access to justice has undergone many modifications, from one of the underpinnings of Magna Carta to a Legal Right for each and every citizen. It entails the
establishment of an effective system wherein rights are recognized and sanctions are granted in the infringement. Access to Justice involves some fundamental principles as in, identification and recognition of grievances, legal aid and counsel, adjudication and many more.
3. STUMBLING BLOCK IN ACCESS TO JUSTICE
The stumbling block coming on the way of access to justice can be divided into following factors:-
3.1 Economic Factors:
Since the country's independence, poverty has been a critical challenge for India. As per 2011's Census Report 21.9% of India's population is below the poverty line.
(Source: World Bank Group)
This data demonstrates that the majority of people do not even have enough food to eat twice a day, then if any breach of duty would occurred against them then ,how would they pay to access such costly justice?
If one has exposure to all resources and is economically solvent, access to justice has never been a concern. However, access to Justice is a daunting task for someone who does not have access to financial resources and so has no possibility of pursuing legal remedies, even if he is aware of his rights. Due to financial incapacity, a person's access to justice is hampered by the exorbitant costs demanded by advocates.
Speaking during the inaugural of the National Legal Services Authority (NALSA) front offices and legal assistance defense counsel office in New Delhi, Justice Ramana remarked - “Ever since we proclaimed ourselves to be an independent republic, we have discovered ourselves trapped between the combined dilemmas of „poverty' and „access to justice,' This subject had been argued on various national and international arenas by the builders of contemporary India".
It really should be spotlighted that higher amounts demanded by advocates is not the only reason behind no access to justice, aside from this there are many more huge amounts of indirect expenses contributing to the obstacles for access to Justice. The inability to pay reduces the odds of getting justice.
3.2 Social Component
Discrimination based on marginalization - Human beings are born with equal human rights, along with the right to equal access to justice for conflict management. When the system fails to ensure that all people have equal access to justice, the underprivileged and marginalized struggle even more, and their human dignity is jeopardized. According to the 2011's Census, the Scheduled Castes and Scheduled Tribes make up around 16.6% and 8.6% of India's population, respectively. It is also a well-known point that, following the enactment of the PoA Act, crime against the community has soared by 66% over the last decade. In addition, cases brought under the Act have a very low incarceration rate. And that's why the disadvantaged population believes that the system primarily concerns upper class society. As a result, they do not seek justice in the case of any violation.
Police Insensitivity - The police play a vital role in ensuring that an individual can have access to justice. However, some police departments are often unable to carry out their responsibilities effectively. The police either due to caste preconceptions or afraid of upper-class dominance in villages, refuse to register an FIR regarding cases of caste violence or prejudice and hence the incidents remain unrecorded.
Police do not follow essential formalities, specifically whenever the victim is from a marginalized group. Women are likewise perceived from marginalized groups, and there are several examples of police insensitivity towards women. In the
"Unnao Rape Case" judge himself opined "Apart from displaying a lack of compassion and a humane approach, the investigation suffered from a Patriarchal Approach or an innate aim to brush the matter of sexual abuse against minors under the carpet."
As a direct consequence of such instances, individuals assume that every police officer is the same, and hence hesitate from filing a FIR.
3.3 Administrative Drawbacks
Latency in Justice:
o Procedural Complexity -
(Source: Factly)
(Source: Supreme Court of India)
Pendency is a national issue with broad disparities from state to state, exerting a stress into the already overworked legal system. One has to undergo a long journey from registering an FIR to getting Justice, which prerequisite a huge time. Quite frequently the law requires the interpretation from higher courts due to the complexity of "procedure established by law".
According to the India Justice Report, 2020 - 3 years is the average time taken by a case from Inception to Disposal in lower courts. Because of these complicated and costly redressed processes, a considerable segment of the population resists approaching the court or other forms of redress.
Inadequate basic Infrastructure –The decaying infrastructure and overburdened courtrooms are another reason for the slowing down of Judiciary. The inadequacy in terms of the number of courts and judges, diminishes the justice process which also leads to infringement of a right to a timely trial. As per 'India Justice Report, 2020' - In India, a limit of 1 judge per 20,000 people has been suggested, but in reality there's only 1 judge for 50,000 people, which is almost double the prescribed limit. Justice NV Ramana himself stated in an inauguration speech that – “The most significant tool for minimizing case pending and relieving the backlog is to strengthen court infrastructure”. The quality of justice rendered is diluted due to the absence of necessary infrastructure.
4. PUBLIC LEGAL AWARENESS: AN UNDERLYING CAUSE
Awareness is described as "knowing and comprehending a fair bit about what is happening in the world anywhere around you and empowerment of every individual concerning legal concerns can be termed as Legal Awareness. Legal awareness fosters engagement in the creation of laws, and the rule of law. It empowers an individual to recognize or estimate legal issues and take the appropriate and essential precautions to curb them. Besides, people with legal consciousness can demand justice, certainty, and redressed at all levels of their lives. Change is a constant part of growing up of society. In such a changing society, it is crucial to educate everyone in order to broaden the ambit of their legal consciousness and to familiarize them to the rules and policies available to them for their benefit. Rareness of legal awareness is amongst the biggest impediments in access to Justice.
Majority sections of the society are unaware about their rights. Many communities, such as SCs/STs and other backward classes, are unfamiliar with the constitutional safeguards and other statutory protections designed for the community's advancement and for redressed of grievances, which keeps them bereaved from their rights. This lack of clear
knowledge and awareness creates a gap between the general public and their constitutional rights.
The former CJ Gangoi at the closing ceremony of the 17th All India Meet of State Legal Services Authority (SLSA) in Nagpur addressed remarked that an absence of adequate awareness is considered to be the "root cause" of "deception, exploitation, and deprivation"
of the people's rights. He also emphasized that "consciousness" of rights as well as the responsibilities to defend them is one of the "powerful instruments" for accomplishing the pathway of access to justice for everyone.
There should be a large-scale organization for legal assistance camps and Lok Adalats to raise public awareness concerning people's rights as well as about accessible legal aid social welfare programs. The installation of welfare centers in numerous backward regions to encourage members of the community to use free legal services to resolve problems.
Legal Aid and Awareness: constitutional provisions vs. practicality
A strong country is one that treats all of its citizens equally and works tirelessly to lift up those communities that are trailing behind. Therefore, when India attained independence, the members of the Constituent Assembly determined to include provisions that can safeguard individual rights and uplift them.
As Article 14 deals with Equality before law and Equal Protection of Law. This ensures that all people, including citizens, companies, and foreigners, are treated equally.
Article 21 provides Right to life and personal liberty. We all are familiar with the fact that India is a country plagued by illiteracy, poverty, and are empty headed about their rights, to provide assurance of safeguarded rights , constitutional provisions have been drafted accordingly. Over the time, the legislative body has recognized that people are limiting their access to justice for a myriad of reasons, one of which is the high cost of procedures. Therefore, the legislature has inserted Article 39-A to the Indian Constitution via the 42nd Amendment Act in order to deal with such challenges by providing free legal aid to them.
Even international law considers free legal representation to be an essential aspect of human rights, and thus provide a provision. According to Article 8 of Universal Declaration of Human Rights - Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law
There are a slew of other statutes, which includes provision of legal assistance:-
Civil Procedure Code, 1908 - Impoverished persons can file lawsuits under Order 33. It permits those who are incapable to afford court fees to file lawsuits without having to pay the required court costs.
Criminal Procedure Code, 1973 - Section 304 provides that the court shall assign a pleader for the accused's defense at the expense of the State if the accused is not represented by a pleader and if it seems to to the court that the accused appears to lack requisite means to approach a pleader; and the section moreover, empowers the State Government to extend the application of said provision to any class or trials before any of the other courts in the State.
Legal aid program is just to provide legal help to individuals who cannot fund legal support or judicial accessibility. Legal assistance is recognized as a human right not merely on a national level, but also on an international level. The provision itself says "The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity". That means it is the duty of the State to ensure that Free legal assistance is offered so that no citizen shall be deprived from access to justice due to financial or other barriers. After inserting Constitutional provision, the Parliament under the Legal Services Authorities Act,1987, established the National Legal Services Authority (NALSA) to provide free legal services to the impoverished sectors of society and to facilitate Lok Adalats for the peaceful resolution of disputes. Moreover, the prerequisites for providing legal assistance to eligible people are outlined in Section 12 of the Legal Services Authorities Act of 1987. The body has been built to outline the most functional and cost- effective legal service plans. In India, many provisions like these have been implemented to defend the rights of the downtrodden, but the question arising here, Are they functioning
correctly? What is the Practical aspect of such laws? If it's just theoretical, then what is the veracity behind these laws?
According to the Tata Trust's assessment (2019-20), per capita legal aid spending in India is just Rs 1.05, one of the lowest in the world. This assessment is showing the veracity. The primary job of legal aid providers is to represent their clients; however, owing to the minimal payment they receive from public funds, they do not forthrightly defend their clients, which leads to cast doubt on the reliability of the legal aid scheme for the poor.
Is the free legal aid scheme really free?
The laws embedded promises to give completely free legal aid to the unprivileged people.
Due to the inadequate remuneration paid to lawyers by the legal aid committees, Even though they are entitled to get their charge from the legal aid committee, still they push their clients to pay a specific sum. The advocates want fair pay for their efforts, and a significant proportion of them are unwilling to participate in these kinds of social services for such low fees. Although, a tiny proportion of lawyers provide these services, the dearth of high-quality legal representation by them impedes the delivery of justice.
Additionally, there are numerous other factors that reveal the true state of legal aid in India. People have a strong supposition that free service is clearly inconsistent with quality service, and as a result of this, they will be barely able to represent themselves effectively. The Indian constitution's Article 22 is itself considered to be in clash with the legal aid plan. Article22(1) states that a it is a right of the person who has been arrested to get informed about the reason of his arrest and he can not be refused to right to contact lawyer and be represented by a lawyer of his choice, even though there is no government rules for legal assistance at the police station, and no state has one as well.
In order to attract adequately skilled lawyers to these entities, it is indeed vital to understand their pro gratis services, by elevating the payment offered to lawyers by the authorities or the government for presenting and defending the guilty for free. Free legal aid entails providing support to those who are impoverished and in need, but people are often Oblivious of the legal aid services available to them. As a result, the legal aid movement has been failing to reach its goal. Thus, There's a requirement to apply the theoretical provisions in a practicable manner.
Justice P.N. Bhagwati was the one who had presented the legal aid scheme to the legal aid committee in the year 1971. He himself observed that " The legal aid means providing an arrangement in the society so that the missionary of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement of its given to them by law, the poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an impediment in the way of their obtaining justice from the courts." The importance of legal aid is expounded in the case Hussainara Khatoon v. Home Secretary, Bihar, the Supreme Court, where it held that Free legal services have become an intrinsic part of a reasonable, fair, and just procedure under Article 39A, and the right is inferred under Article 14 of Indian Constitution.
5. CONCLUSION
Access to justice" refers to the ability to seek a fair, reliable, and positive conclusion of a dispute from a reliable forum at a reasonable cost. It is a vestige of a vibrant democracy wherein the government safeguards the rights of its citizens. Since independence, India has lived up to aspirations of being a robust democracy by safeguarding citizens' rights, however this is only on a theoretical level. Practical considerations are the polar opposite of this. Despite the fact that there have been a large number of legislations for public interest and judgments to safeguard the rights, they have proven to be a fiction for the majority due to their ineffective implementation.
Bringing out reforms is a necessity of the hour, it can be implemented in a variety of ways. The pioneer thing that can be done to help make access to justice smoother is to recruit more judges. The number of judges in India's justice system is insufficient, resulting in delay in justice. Judges should be hired, with women and young judges being prioritized.
India spends less than 1% of its GDP on the judiciary, there's a requirement to enhance the budget of the Judiciary to develop court facilities along with more courtrooms and include more staff. Furthermore, the amounts allocated should be fully utilized, with no room for
strategic interference or interest on the part of the court management. To remove geographical barriers, courts and other quasi-judicial institutions should be built without a huge discrepancy between constituencies, in order for citizens to have immediate access to the legal system. Up gradation of technology capabilities and serving justice via e-courts, would be more productive and timely for Indian judiciary.
The current social strata are utterly unenlightened about execution
of legal aid services. We have established a concrete legal aid foundation in order to render justice, but the concern is still on the question as to whether they are genuinely feasible and realistic on the ground. Government's eyes must seek out such concerns and their cures.
Because, boosting access to justice is not only to combat the shortage of judges or anything, but it's about rendering qualitative justice. There's a line of Sanskrit shlok which goes as स्वस्स्िप्रजाभ्यःपररपाऱयनिाांनयायेनमार्गेणमहीांमहीशाः। means May the well-being of all people be protected by the powerful and mighty leaders be with law and justice. Consequently, it is the State's responsibility to realign its litigation management strategies. It seems a tough row to hoe to educate people about something they've never known of anyway, but it's not impracticable. It's often a grassroots endeavor that can hand in improving a system.
REFERENCES BOOKS -
NCERT, Political Theory
NCERT, Sociology
J.N. Pandey, Constitutional Law of India ACTS –
The Code of Criminal Procedure, 1973, Section-304, ACT No. 2 of 1974
The Civil Procedure Code, 1908, Order 33, ACT No. 5 of 1908
Legal Services Authority Act, 1987, Section- 12, ACT No. 39 of 1987 ONLINE SOURCES –
www.indianexpress.com
www.legalservices.com CASE LAWS –
Hussainara Khatoon & Ors vs Home Secretary, State Of BiharAIR 1369, 1979 SCR (3) 532.
REPORTS –
2011 Census Report
India Justice Report, 2020
