EQUAL ACCESS TO JUSTICE A DETAILED AND CRITICAL ANALYSIS
This Article is written by Thomas Sebastian & Fathima Sherin students of Bharat Matha School of Legal Studies , Aluva, Ernakulam, Mahatma Gandhi University, Kottayam.
The main objective of a good judicial system is to ensure the rule of law and protect the right of the individual. So a good judicial system must ensure the basic principle of rule of law, that is equal access to justice. If equal and easy access to justice can be ensured, people can use the judicial system both as a weapon to prevent injustice and a shield to protect themselves from injustice. Moreover, the judicial system can be used to ensure justice by punishing the culprit who violates any right of the individual. Nevertheless, if there is no easy and equal access to justice, there is no point in having a good judicial system and it can't be worked as a weapon or shield other than just a fictitious prison that create restrictions. Because if a person has to enforce his fundamental right, he has to approach the court by filing a writ under article 226 or article 32. If he has to protect any of his civil rights he has to approach Civil courts to ensure it. That means if a person is incapable to approach the court even if any of his basic rights are intruded on, any of these rights are not going to carry out. Even though, if he used another measure to enforce his rights, the law will prevent and punish him.
IMPORTANT OF EQUAL ACCESS TO JUSTICE
The judicial system can enforce the right of an individual, only after the judicial system becomes aware of the fact that there is a violation of any basic rights. However, the people who can inform the judicial system about the violation of their basic rights are the people whose rights are violated. But that process is only going to happen if an aggrieved person can approach the court. Moreover, people obey the law, only if it protects their basic rights other than creating restrictions and boundaries. World history reflects that whenever the government fails to protect the basic rights of the societies, it leads to big wars and revolts. So easy and equal access to justice helps to increase the people's belief in the judiciary and it also helps in executing a good law and order system.
EQUAL ACCESS TO JUSTICE IN INDIA
The constitution of India guarantees equal access to justice to all its citizens of India. Article 14 of the Constitution asserts that the State shall not deny to any person equality before Law or equal protection of laws within the territory of India. Moreover, Directive Principles of State Policy under Article 38 details that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, economic and political policies shall inform all institutions of national life. Besides the Law Commission of India in its 14th Report (1958) discerned that “Equality before the legislation involves the concept that all the parties to a proceeding in which justice is sought must have an equal recourse of access to the court and of exemplifying their cases to the court. Regardless, one of the biggest flaws of our Indian Judicial system is that it is one of the most expensive judicial systems in the world. So only privileged people can approach the court by paying a lot of fees. The majority of people who work hard to keep their families alive are not able to approach the court and enforce their rights. But to endure the situation and provide equal justice to every citizen, Parliament inserted Article 39-A by its 42nd Amendment. Article 39-A(1) states that Equal justice and free legal aid-The State shall secure that the operation of the legal system promotes justice, on a basis of equal recourse and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that occasion for ensuring justice are not refuted to any citizen because of economic or other disabilities.
One of the second issues faced by citizens in the Indian constitution is that the Indian constitution is the biggest in the world, and even lawyer is not well versed with provisions associated with it. So most of the citizens are not even aware of their rights and so it is not possible to enforce them. In addition to that, the Indian legal system required a very long time to resolve the issues filed they're and most of the time court takes a lifetime to deliver a judgment. In these cases, nobody gets any justice because justice delayed is justice denied. Also, the government's failure to implement a lot of Supreme Court decisions indicates that there is a lot of injustice even after the good deliverance of judgment.
THE CHALLENGES OF EQUAL ACCESS TO JUSTICE
The highly expensive judicial system, incompetent judges and advocates, biased judicial system, losing the independents of the judiciary, high political influence, taking the long term to deliver justice, bribery, negligence of police and investigation officers, etc. are the biggest challenges faced by a judicial system to give access to justice to every citizen. Even though, providing free legal aid, teaching the basic law and rights to citizens, selecting judges after analyzing their viewpoints, morals, abilities, beliefs, and so on and train them to elegantly decide than act upon emotionally, give supremacy to the judicial system and proper implementation of the decision made by courts, and so on can help the judiciary to overcome these obstacles.
ENHANCEMENT OF ACCESS TO JUSTICE
LEGAL EDUCATION- To enhance access to justice, Citizens should have to approach the court to enforce them. Regardless, before approaching the court, they should have to understand the rights guaranteed to them and which rights are violated. So to understand the basic right guaranteed to them, it is necessary to provide basic legal education to every citizen.
FREE LEGAL AID - Our legal system is very expensive. Even though, free legal aid is available for people who are financially backwards to approach the court. So to make sure that these all people are aware of this aid and make sure that they use them Is an essential part.
TO USE LAW STUDENTS- Today it is very necessary for law students to do at least 10 internships during their curriculum. So, using law students to spread legal awareness and encourage them to provide basic service to citizens is a better method to educate people about their basic rights and motivate them to approach court than, running away.
EDUCATING LAWYERS- Practicing law is a profession. So lawyers have to keep in their mind what they have to follow. Learning and practising according to the code of ethics provided by the bar council is necessary for every advocate to obey. Following the Code may help to reduce a lot of inequalities in the judicial system. It's also applicable to judges.
PREVENT NEPOTISM- Like the film industry, one of the biggest professional areas with nepotism is the Indian legal system. Top positions in the law field are held by sons or daughters or families of famous advocates or judges. It is very difficult for a student without a law background to survive this profession. Becoming the family of a great person is not going to make anybody great. They also have to earn it. So appointing any person to any position should solemnly depend upon their abilities and morals.
REPRESENTATION OF MINORITY IN JUDICIAL SYSTEM- Indian legal system even doesn't have gender equality. The legal system is the best place to provide justice. But even in that place, there is no justice, because a lot of minority people have no representation. So it is necessary to make sure that there is representation from each minority and, their representatives should have the ability to hold that position.
JUDICIAL SYSTEM WITHOUT POLITICAL INTERFERE -There is a lot of case in which the state stands as a defence. So states do not have interfered in the business of the court. There should have an independent judiciary. So keep politics away from the business of the court and in a case, the accused or any person related to the case should not get any special consideration due to his or her politics.
IMPLEMENTATION OF MORE FAST TRACK COURTS- Justice delayed is justice denied. So the Court must deliver justice as fast as can. Fast track courts help to take fast decisions.
APPEAL ONLY FOR SERIOUS CRIME- Even if there are thousands of courts, every appeal comes to the apex court that is Supreme Court. So there is a bulk of cases in court that do not even have a single hearing. So it's causing a delay in the deliverance of justice. So limiting the power to appeal only for a serious crime help in solving the case with highly important or included a substantial question of law.
COURTS OBSERVATIONS ABOUT EQUAL ACCESS TO JUSTICE IN INDIA
In Anita Kushwaha V. Pushap Sudan In case, the court declared that equal access to justice is also a fundamental right guaranteed under Article 14 and Article 21 of the constitution. Moreover, Supreme Court judge Justice N V Ramana said that all the guarantees given by the state are worthless if equal access to justice can’t be ensured. Besides, H L data and S J Mukhopadhaya admitted that the Indian judiciary failed in giving access to justice and it giving priority to rich, powerful, and politically influential people while completely avoiding poor and non-privileged people. Justice S A Bobde in the inherent Jahan encounter case observed and said that the court became a haven for criminals with money and influence, while peoples with poor backgrounds and less influence suffer because their appeals are pending before courts even 20 or 30 years. He said that statement because, in the Ishrant Jahan encounter case, the IPS officer approach the court for anticipatory bail, almost 8 times. But there is a lot of people, those even not have one chance to approach the court.
Here, courts recognized and accepted the importance of equal access to justice. They further admitted that the judiciary failed in providing equal access to justice. So it is already very late and the state must take immediate actions to ensure equal access to justice.
Equal access to justice is a fundamental right guaranteed under Article 21 of the constitution of India and it is also an essential part Of the concept of "rule of law’. So the state should ensure that every person gets easy and equal access to justice. It is very improper to argue that, India has equal access to justice in a situation in which, even Supreme Court admitted the fact that, the court fails in giving equal access to justice. So following the guidelines proposed by the article helps in creating equality in access to justice and easy access to justice.
Equal access to justice and free legal aid is not charity. It is a very important and basic fundamental right that is guaranteed to a citizen. So make citizens, aware of their rights, encouraging them to approach the court for a solution and providing legal aids empower every class of people to directly address the court without hesitation and, providing fast judgment with the support of good and qualified judges and lawyers help to achieve its objective and equal access to justice.
1) Chhattisgarh state legal services authority Bilaspur, National informatics centre, Oct 14,2021http://cgslsa.gov.in/background.htm
2) Expanding access to justice, C Raj Kumar, 6:00 pm, Oct 13,2021https://www.thehindu.com/opinion/lead/Expanding-access-to-justice/article11758732.ece
3) Justice Ramana Rues Unequal Access To Justice, Legal Correspondent, 4:00 pm, March, 23, 2021https://www.thehindu.com/news/national/justice-ramana-rues-unequal-access-to-justice/article34136153.ece
4) Inequality in access to justice is no less than injustice, Asadullah, 8:00 pm, Oct 15, 2021https://www.cbgaindia.org/blog/4186/