Abstract

It is very well said that “Justice delayed is justice denied” but this does not mean that Justice is always delayed by denied, firstly you have to stand for Justice. Delaying does not mean that you forgot to stand for Justice and against Injustice. The Constitution of India has provided various articles for protection of its citizens. Those articles are Article 14 which talks about right to equality before law, Article 21 which talks about right to life and personal liberty, Article 39A which talks about imposing an obligation in the state to provide free legal aid to ensure access to justice for all citizens. These all articles guarantee the citizens the right to access to justice. But due to some barriers, common peoples find it difficult to access to justice. So, this paper tries to investigate that what are the barriers by which common people finds it difficult to access to justice. Some of the well known reasons are that the people are not aware about Access to Court and Access to Justice, delaying of judgements are one of the popular reason, common people can’t afford lawyers of higher costs and increasing costs of lawyers are increasing day by day is one of the leading barrier of Access to Justice. This paper also seeks your attention towards research methodology and then legal framework which includes those articles by which you directly reach to Supreme Court and High Court for Access to Justice because of your violation of fundamental rights and for other legal rights. Then this paper talks about meaning and barriers to Access to Justice that we discussed earlier in this context. The paper further discusses a few landmark judgements that have upheld the right to Access to Justice and need for legal aid.

And to conclude, the research talks about the pre assumption of common people for Access to Justice and its decrement day by day and increasing the faith of people on Judiciary and Access to Justice by Court by increasing of legal aid services and easily access to higher court for Justice.

Keywords

Rule of Law, Fundamental Rights, Barriers, Lack of Awareness, Complexity of Law, Legal Aid.

Introduction

India, officially the Republic of India, has the longest Constitution in the world in which it provides rights and liberties to its citizens. But despite of its longest Constitution , its largest population finds its difficulty to access courts for any remedy or to exercise their rights. Some of the barriers which blocking the access to courts and justice are charging of high costs by lawyers for taking the legal actions , lack of awareness of legal rights to the citizens , not able to reach legal aid services everywhere for accessing to the individuals , etc.

If you ask to any of its individuals for accessing to courts and justice, he / she would rather remain silent and does not want to raise their hand for taking any legal action against the infringement of their rights because they knows if they enter into that process it would take a long time and causes a lot of loss to their mental as well as their physical status. So, Rule of Law is meaningless if it can’t provide access to court and justice to its common people. And not only access to justice is important but it is important to access to justice by legal proceedings in an appropriate time, otherwise it would turn meaningless for that particular individual.

Research Methodology

This paper employs a Methodology of secondary research and contained the information from authorized and reputable online sources, academic publications and government reports. The research talks about topic and status of access to justice in India and also about the difficulty, complexity and biggest challenges to access to justice for obtaining the legal assistance to the common people if they needed. So, this paper analyzes and synthesize various information from diverse secondary sources to understand more about the necessities of Access to Justice to every Individual of our society.

Legal Framework

The Constitutional provision on which Access to justice works through Article 32 by which a person have right to directly reach to Supreme Court for the protection of their fundamental rights to get access to Courts and to get access to Justice. The individual have also right to directly reach to the High Court for violation of the fundamental rights or for any other matters also through Article 226. These two articles provides an individual rights to directly reach to the higher courts without going through a lot of hassle in lower courts by which he/she can easily get access to courts and also easily get access to justice.  The main access these two article provides are either go to Supreme Court for violation of your fundamental rights by article 32 or go to High Court for violation of your fundamental rights as well as for any legal matters by article 226.It includes access to court for justice by violation of their rights by article 14 and by article 21 which provides us right to equality before law and right to life and personal liberty and all of these legal matters.

Meaning of Access to Justice

Access to Justice is basic rule which provides the citizen access to the legal system and get justice but should be in a reasonable time. It acts on the principle of the rule of Law and provides citizens equal opportunity to access to court. The law for access to justice is provided in Article 14, 21, 22, 32, 226. It provides free legal aid, equality before law and equal protection of law.

 Barriers to access to justice

There are mainly two types of barriers to access to justice –

1. Socio-Economic barriers
2. Legal barriers

• Social barriers- Social barriers are those barriers in access to justice which arise by the social status of people. Indian society is divided into two parts privileged and unprivileged. Rich people are always superior over poor. In India the society in which people lives decide whether they have the access to justice or not. Also the caste system motivates the social barrier to be on continued state. Nowadays justice became the monopoly of few, technically who can afford it. This double standards of our law is creating social barriers in access to justice to all[1].

Types of social barriers:-

• Feudalistic society- In such society landholders become masters for their tenants in order to provide land in exchange of their service. The money lenders provides them with money at high interest rates that later forced them to become their slaves because of unable to return them back. This is very much common in farm areas or rural areas. Farmers are always being exploited by money lenders or landholders. This is a debt trap working in our society from a long time. Those people don’t get the exposure to the laws made for them to protect them and the government also have not given them enough attention leading to the barriers to access to justice for them.
• Lack of education- Literacy rate of India is still very low, there is a lack of proper education especially in rural areas. Uneducated people are unaware about their basic rights. Education plays a very important role from all aspects. But, lack of education or nearly no education is creating social difference an creating a barrier for many to know about their rights and get justice. Still there are many people in India who cannot afford it. Education is like a medicine for all social illness that can cure its effects. Government should pay attention in providing quality education to all as it’s not just a basic need but also a birth right. Education can remove the social barrier to access to justice and can make the process smooth.

• Lack of awareness- Obviously, there are lack of awareness among several peoples. People are still not aware about their basic rights. They don’t know about the rules and laws that can protect them from such exploitations from the suppressor or power holders. Awareness can be created through education i.e, by providing them quality education and knowledge and making them understand about the laws created for them against any criminal offences. Atleast basic human rights must be known to all the citizens it’s important. Many people are still not aware enough to protect themselves from the bunch of creeps. Hence, our government should spread awareness for the smooth functioning of our judicial system[2].

• Economic Barriers- Another barrier to access to justice is economic divide that’s in between because of the already existing social divide in Indian society. Person who is financially good has access to all the means and the one who don’t have enough face problems to access to justice. Access to justice is a problem only for those who cannot afford it. A person with no money cannot afford access to justice even if he knows it’s his rights.

A very example of the effect we all can observe is in railways. All of us have been travelled on train once. There is a chain in the train by pulling which one can stop the train instantly but for doing this the reason should be genuine. There is a law for it that if someone pulls a chain without any genuine reason he/she may either pay /- 1000 or serve to jail for atleast 6 months. This very law of ‘or’ is creating the barrier. The person with healthy salary will give thousand rupees and will get rid of it but the person who is not even getting enough money for two time of meal will have to serve to jail. This is creating a gap in justice.

Another impediment is the very established system of corruption there are many public officers who works on corruption and bribery making access to justice a difficult and unachievable reality.

• Legal barriers- There are so many obstacles to justice in India but the biggest and the largest is the legal system itself. It has always affect the quality of justice being served. So, the legal barrier to access to justice is the barriers related to our legal system in which we all operate. Legal barriers to access to justice are not that trivial problem but the circle under which it is being operated is a problem to contribute to justice. In India the judicial system is huge and has different levels. But, due to various reasons the justice gets delayed.  Reasons like lots of paperwork, lack of coordination among officers, high fees etc are the barrier to access to justice.

Some of the legal barriers are-

• Procedural Barriers – Procedure of legal system has always been so time consuming in India. As it takes more time to serve justice it also involves more money which becomes inconvenient for many. The procedure of justice is very unpredictable in India it can take 3 years, 7 years or sometimes your whole life to get justice. The procedure involves a lot of paper works, money and time which leads to the breakdown of person physically mentally and financially. Existing system is lacking in resources setting accumulation and mismanagement leads to the procedural barrier in access to justice.
• Delay in delivery of justice – The Indian courts are struggling with backlog.  The process of delivering justice here is lethargic. Today we have fast track courts, Lok Adalats and judicial activism which can help in fast trial still the problem of late delivery and justice cannot be solved.  There are more than 32 million cases in India which are still pending.

• Complexity of law- Indian constitution and the laws in India are very complex which is creating a barrier to access to justice. Many people in India are not educated and don’t have notion of the law leading to delay and complexity in cases. During a case there are so many rules and regulation which should be followed by everyone and those rules and regulation create the confusion for many people.

Landmark Judgments

The  case  of  Hussainara  Khatoon v. Home  Secretary, State of Bihar  is  a  case  popularly  known  for the court’s interpretation  of  right  to  speedy  trial  read  into  Article  21. The  court  in  this  case introduced   a  legal  aid  service  program – providing  free  legal  aid  to  under  trials.  The  case  discussed  the  rights  that  the  prisoners  are  entitled  to  with  respect  to  habeas  corpus  petitions.  It was  discovered  that  a  frightening  state  of  affairs  prevailed  in  the  justice  system  in  Bihar.  Many men,  women  and  children  were  locked  up  behind  prison  bars  for  several  years  awaiting  trial  in courts  of  law.   It was disclosed that many of these prisoners were locked up for offences that were trivial in nature, yet they remained locked up behind prison bars for a period ranging up to ten years or so because of the trial not being commenced. The court in this case, demanded for immediate release of these prisoners who were locked up without a trial taking place or sometimes, even without a charge. It was held in this case that providing free legal help and services to the poor, underprivileged and that in need is an imperative element under the meaning of „reasonable, fair and just procedure.  Whether a prisoner is guilty of a crime or is innocent, he/she should be given the opportunity of representation and should be able to avail legal services that the Constitution guarantees to all its citizens. Another important feature of our Constitution is Article 39A which also emphasizes on free legal services. Article 39A essentially states that providing free legal service is an in-alienable element of the definition of „reasonable, fair and just‟ procedure. A person who has economic problems and other disabilities would be deprived of an opportunity of securing justice if there is no provision of legal aid. Thus, free legal aid is an important ingredient that can be evoked from Article 21 of the Constitution as a fundamental right. It is a right that is promised to every citizen who is accused of an offence and is unable to pay for the services of a lawyer due to various reasons that include: poverty, indigence or incommunicado situation.12 The State has the responsibility to provide legal help to a person when the circumstances show that the person is unable to afford the help. There is an urgent need to introduce a vital, strong and comprehensive legal aid and legal services program that is impressed upon the Government of India as well as the State governments, to ensure that every person has the provision of getting access to courts. The State cannot get away and not comply with its obligation that the Constitution sets on it to provide services to the ones who need it by providing financial and legal help. It is also the obligation of the Court as a guardian of fundamental rights as a sentinel on the qui-vive, to enforce the fundamental right of the accused to speedy trial by issuing directions to the States. This can be done by taking actions like strengthening the machinery that is used to investigate cases, setting up of new courts at various locations as well as building new courtrooms, so as to ensure that everyone has access to courts, appointing new additional judges and other measures to ensure that justice is delivered to all and that everyone has the provision of getting access to courts. Justice Bhagwati in para 107 of the judgement also heavily emphasized on the State’s duty to ensure that every citizen’s constitutional right of a speedy trial is provided and that the State cannot use the defense of not having enough financial resources to meet the necessary expenditure needed for improving administrative and judicial apparatus with a view to improving speedy trial. Another case that stands out in the discussion about access to courts, is the case of Khatri v. State of Bihar II also known as the Bhagalpur blinding case. The case started off by several petitioners who had filed writ petitions at the Supreme Court using Article 32 for the enforcement of their fundamental rights under Article 21 of the Constitution. They complained about the fact that the police had blinded them at the police station while they were held under custody. The case emphasized on the constitutional obligation of providing legal services to the poor and accused. The court emphasized on the State governments obligation that the Constitution mandates to provide free legal services to the ones who cannot afford it. A trial held without offering legal aid to an indigent accused at state cost will be vitiated and conviction will be set aside.  Also, free legal services to the needy and poor should be delivered as they form as essential part of „reasonable, fair and just procedure‟. Legal aid is a fundamental part of providing access to courts. The moment the accused is produced before a magistrate, this right of indigent arises. The accused then gets the opportunity to make an application for bail and thereby obtain a release which is then followed by seeking legal assistance and representation. The accused has the right to claim free legal aid in a situation that he is sentenced by the court and wishes to appeal against this decision. The magistrate and judge also have the legal obligation, according to the court to inform an accused about the provision of seeking legal services and engaging a lawyer if it is evident that the accused is not in a position to afford legal services on account of his economic conditions, poverty or indigence. The State is under the responsibility to provide this help. The Court took the view that the right to free legal services would be illusory for the indigent accused unless the trial judge informs him of such right. The Court also went on another tangent and urged that, it is a requirement mandated by the Constitution to produce an arrested person before a judicial magistrate within 24 hours of being arrested and this condition is to be strictly and very carefully followed. Another interesting case that defined the true meaning of “access to courts”, is the case of Cotton Corporation of India v. United Industrial Bank. Here, the court started off by saying that everyone without any contradiction has a right that is legally protected to seek relief from a court of law. The person has an unhindered, uninterrupted access to law courts. The court then stated that the word „law courts‟ here is used in a general and wide sense to bring under its umbrella and comprehend every forum where relief can be obtained in accordance to the law of the land. Access to justice and Access to courts shouldn’t be obstructed at any cost and must not be hampered even in the hands of the judiciary. Access to courts by a person in search of justice in accordance to the law is the right of a person and another court of law cannot take away this right and cannot impede access to justice. This principle is present and functioning in the Constitution that essentially seeks to set up a society that is governed by law. The legislature sets out the rule that ordinarily the judiciary shouldn’t come in the way of impeding access to justice through courts. This is an important and equitable principle set out in our Constitution that keeps the path to access to courts and access to justice unobstructed. The court in another landmark judgement: Sukh Das v.Union Territory of Arunachal Pradesh21emphasized heavily on providing free legal assistance. In this case, the appellant was charged for threatening his assistant engineer for cancelling his transfer orders.The appellant did not find legal representation because of his economical background. There was no cross examination conducted in this. The Supreme Court thereby set aside the conviction against the appellant due to lack of legal representation. It then stated that providing free legal assistance at State cost is a fundamental right of a person who is accused of an offence and which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.  Thus, the court in this case, upheld the right to free legal assistance and stated that it would indeed be a mockery of free legal aid if it were left to a poor, ignorant to ask for free legal aid. It would merely become a paper promise and its purpose would fail. An accused being unrepresented in the court proceedings is totally in violation of his fundamental rights[3].

Conclusion

Access to Justice is a very important and needy provision provided by the Constitution of India which helps many of the common people now a days in various ways in their different types of legal needs. It provide a very important right that is right to Legal Aid which can be access by various ways by the common people which helps a large number of people on the different areas of the state. But there is a very big pre assumption by the peoples from a very long time that itbis better to settle the matter outside rather going to the court because it is there pre assumption that by going to the court, firstly they will suffer from accessing to court , then they will suffer from a lot of loss even if they access the court either it can be mental loss or physical loss which they have to bear and lastly but not the least is they will suffer from ACCESSING TO JUSTICE.

But Court wants them to believe that Court provides you ACCESS TO JUSTICE but firstly you have to ACCESS TO COURT with your complete faith. But now day by day their faith in the Court increasing that the court will provide them JUSTICE.

[1] Akshara Sinha, Analysing the barriers to access to justice, Linkedin . Quartz Legal Associates(3rd January 2024,8:00 PM), https://www.linkedin.com/pulse/analysing-barriers-access-justice-edge-law-partners/

[2] Akshara Sinha, Analysing the barriers to access to justice, Linkedin . Quartz Legal Associates(3rd January 2024,8:00 PM), https://www.linkedin.com/pulse/analysing-barriers-access-justice-edge-law-partners/

[3] Mayukha Parcha & Anicham Tamilmani, Access to Justice in India, Volume 2, Issue 1,International Journal of Law Management and Humanities, 1,(3,4,5), (2018), https://www.ijlmh.com/wp-content/uploads/2019/03/Access-to-Justice-in-India.pdf