Microsoft word - access to justice

Munmun Singh, Fourth year student of B.A. LL.B. National Law University Delhi1
India is rightly acclaimed for achieving a flourishing constitutional order, presided over by an inventive and activist judiciary, aided by a proficient bar, supported by the state and cherished by the public. At the same time, the courts, and tribunals where ordinary Indians might go for remedy and protection, are beset with massive problems of delay, cost, and ineffectiveness. Potential users avoid the courts; in spite of a longstanding reputation for litigiousness, existing evidence suggests that Indians avail themselves of the courts at a low rate, and the rate appears to be falling. Still, the courts remain gridlocked. There is wide agreement that access to justice in India reforms that would enable ordinary people to invoke the remedies and protections of the law. The Lok Adalat, literally meaning people's court, and as the name suggests is a forum for promoting access to justice having a different source and character than the courts of the state. In fact, the Lok Adalat is a creature of the state, but because of the pretension that it is not, it deserves examination under the rubric of an alternative, non-state justice system. Introduction:
Need for Access to Justice: Justice is the foundation of any civilized society. Preamble to
the Constitution of India includes ‘Justice – social, economic and political’ as a Constitutional goal. Article 39-A of the Constitution provides for ensuring equal access to justice. Administration of justice involves protection of the innocent, punishment of the guilty and satisfactory resolution of disputes. It has been rightly said that an effective judicial system requires not only that just results be reached but that they be reached on Steps have been constantly taken to simplify procedures and to make the working of the system more efficient by judicial reforms and by management techniques. However, the 1 Author is available at [email protected] task before the legal fraternity in India is gigantic, to say the least. The following figures quoted by CJI R C Lahoti (as he was then) on Law Day, 2004, speak volumes: Table 1: Strength of Indian Judiciary and Lawyers: Number of advocates enrolled in the country Table 2: Pendency of Litigation as on 30/6/2004: Even as the Indian Judiciary, working under considerable handicaps such as inadequate funds, budgetary allocations for law and justice not being part of the plan expenditure, shortage of resources, shortage of staff and infrastructure, shoulders the phenomenal burden of the volume of litigation and range of cases, the figures above reveal an acute need for alternative mechanisms for dispute resolution. Unfortunately, the currently available infrastructure of Courts in India is not adequate to settle the growing litigation within reasonable time. Despite the continual efforts, a common man may sometimes find himself entrapped in litigation for as long as a life time, and sometimes litigation carries on even on to the next generation. In the process, he may dry up his resources, apart from suffering harassment. Thus, there is a chain reaction of litigation process and civil cases may even give rise to criminal cases. Speedy disposal of cases and delivery of quality justice is an enduring agenda for all who are concerned with administration of justice. Access to Justice: “Access to Justice” is a curious phrase as it implies that the system of
justice is not in fact available to all and that there are obstacles in the way. Is it true? In a civilized society, the state guarantees that each citizen approach the permissible and prescribed grievance redressal forum to claim his rights even if it is against the state. However, the truth is that civil justice has been beyond the reach most of the disputants, though they in turn are by no means beyond the reach of the criminal justice system. It is important to remember that it is only in recent years that an assumption that access to justice as a universal right was made and even more recently have begun to recognize it as a fundamental right, a right which is political, economic and social as adumbrated in the The Universal Declaration of Human Rights mandates in Article 10 that “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge Access to Justice therefore has two parts: (1) where a person is able to approach the Courts but may not take his litigation right through the trail or to the appellate Court or to the highest Court of the land; (2) where a person has not been able to approach the court at all. The latter can be sub-divided into two parts—(a) cases where the person is aware of his right but does not know whom to approach and which forum to approach, or is unable to approach the Courts of law because of poverty or other reasons, and (b) cases where the person is not aware of his rights at all. ‘Access to Justice,’ must be board- based and people-oriented3. As it is the most basic of all human rights in any civilized world- one that has a democratic dimensions involving remedial jurisprudence for every bona fide seeker. However, before we begin to understand the contours of access to justice, it is essential to address a more fundamental issue i.e. what is justice? Unless we understand what we are attempting to ‘access,’ we may never truly appreciate how to achieve that objective. Ø The concept of justice: Before proceeding further it is imperative that one understand the term ‘justice.’ It is interesting to note that this expression has been used in our Constitution only in the Preamble and in Article 142. Nowhere else in the Constitution has the term been defined. Justice Krishna Iyer in an address to the 18th Annual Conference of the America Judges Association identified ‘justice’ with ‘truth.’ So, in his understanding, the quest for justice is the quest for truth, and by analogy, justice is denied when truth is checked by a Judge’s “pet social philosophy”. The dispensation of justice entails giving one his due. This in turn means that Courts must in every way provide relief and find legal techniques to provide relief to one who has been deprived of what was due to him or to her. Such a situation arises because the law as it is may fall short of the law as it ought to be. Beneficial legislations for the upliftment of weaker sections of society therefore is not considered a violation of Article 14 as justice does not necessarily demand the same result for everybody- inequality of treatment is not an exception but is a rule of justice. Ø The Contours of ‘Access to Justice’: Its briefly discussed above, that any discourse on access to justice must inevitably touch upon the hurdles of differing nature that present themselves in the path of the wronged seeking justice- this includes, the litigants who has had access to the Court but has not obtained quick relief; those who have not even had the chance to knock at the doors of the Court because of ignorance of their legal rights or poverty; those who are aware of their case is heard – such as prisoners in need of post facto 3 Akhil Bharatiya Soshit Karamchari Sangh (railway) v. Union of India, (1981) 1 SCC 246,281. remedy for prison excesses committed during their incarceration4. It is generally agreed that access to justice requires three basic facilities: (a) that there must be a dependable system of laws; (b) that there must be Courts to enforce these laws; (c) that there are well- trained officials to manage such Courts. It is also well understood that access to justice is not merely justice in its ordinary sense; rather, access to justice must include access to social, economic, and political justice, as encapsulated in Part IV of our Constitution of It would not come as a surprise that often hurdles of the simplest and most obvious nature have had devastating results, for example, it has been found that the Court fees payable by the litigants may at times being an impediment in achieving access to justice for indigent litigants, if it is prohibitively high5; or that the principle of locus standee may many a time, wrongfully prevent officious outsiders from approaching the Courts, even when such outsiders do so solely for the cause of justice6. Ø The Efforts of the Superior Courts in India – Ensuring Existing Rights and Creating New Rights: To tackle such problems and more, Courts in India continuously adopt strategies that challenge the bounds of judicial inventions as public interest litigation owe their existence to the liberal construction which our Courts have given to the phrase ‘access to justice.’ While, as Earl Johnson, Jr. finds American Courts consider indigents to have “access to the Courts” on the count that they could come to the courtroom without cost, even though they could not engage a lawyer, courts in India have sought a holistic understanding of the concept accessibility. For the latter, access is not merely superficial attendance in the Court; it connotes “access” both in letter and spirit. At the forefront in facilitating access to justice has been the Supreme Court of India which has not hesitated to “innovate new methods and devise new strategies for the purpose of providing access to justice to large masses of people who are denied their basic human rights and to whom freedom and liberty have no meaning.”7 Class-action suits, representative suits, and public interest litigation are some of the techniques which have been evolved to overcome the problems of accessibility. At the 4 Sunil Batra (II) v. Delhi Administration, (1980) 3 SCC 488. 5 M/s Central Coal Fields Ltd. v. M/s Jaiswal Coal Co., 1980 (Supp.) SCC 471. 6 P.S.R. Sadhanantham v. Arunachalam, (1980) 3 SCC 141. 7 S.P. Gupta v. Union of India, 1981 (Supp.) SCC 87. same time, the Superior Courts in India have also ventured to create new rights for the citizens through progressive interpretations of the Constitutional provisions. For example, most recently in Naveen Jindal v. Union of India8, the Supreme Court created a new right by holding that every citizen of the country has the fundamental right to fly the National Flag with dignity under Article 19 (1) of the Constitution of India. Besides this, the other rights created are, for example, the right to travel, right to privacy, prisoners’ right to interview, right to a fair trial, right against torture and custodial violence, right to free legal aid, right to health care, right to safe drinking water, women’s right against sexual harassment, right to quality life, right to family pension, right to work (though not fundamental), and right to environmental protection. Ubi Jus Ibi Remedium: Is it an empty formality?
This concept a potent judicial technique for dispensing justice within the context set out above, is to provide succor to those who have a right to relief. In other words, no one must be denied a remedy if he or she has a right- ubi jus ibi remedium. It is said that the maxim is of action called an ‘action on the case’ – where no precedent of a writ could be produced, the clerks in chancery agreed to form a new one. So much so, that in Dhannalal v. Kalawatibai,9 the Supreme Court observed: “If a man has a right, he must, have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it, and indeed, it is vain thing to imagine a right without a remedy, for want of right and want of right and want of remedy are reciprocal.” The principle that rights must have remedies is ancient and venerable. In Ashby v. White,10 the Chief Justice of the King’s Bench stated: “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for… want of right and want of remedy are reciprocal… where a man has but one remedy to come at his right, if he loses that he loses his right.” 8 (2004) 2 SCC 510. 9 (2002) 6 SCC 16, 29-30. 10 92 Eng. Rep. 126 (K.D. 1703). The enforcement power of the remedy is the quality that converts pronouncements of ideals into operational rights. It is this enforceability that makes something legal, rather than moral or a natural right. In the Federalist, Alexander Hamilton stated that the definition of a claim as a “legal” right depends upon the availability of this enforcement: “It is essential to the idea of a law that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions of commands which pretend to be laws will, in fact amount to nothing more The remedy is thus the integral part of each right that is ultimately necessary to the effectuation of the rule of law. For without a remedy, judicial decisions are merely advisory opinions, hypothetical undertakings with no practical effect. Without remedies, the law simply has no force in society. Individuals need not conform their behavior and established The Supreme Court of India has gone further by stating the access to justice requires more than “mere declaration of invalidity of an action or finding of custodial violence or death in lock-up…”11 Rather, the principle of ubi jus ibi remedium mandates that those who approach the Courts for justice should be provided a “meaningful” remedy. Thus, for instance, access to justice may require the Court not only to prosecute the offender, but also where necessary to provide monetry compensation to the victim of the crime. Bandhua Mukti Morcha,12 are but a few of the instances out of countless many where the Apex Court of this land has provided not merely relief, but relief with compassion and foresight that would merit being called “meaningful.” Identifying Structural and Operational Judicial Reforms:- While the Courts have never
shun away from its duty of providing access to justice for the teeming millions of this country, it would not be incorrect to state that the objective would be impossible to achieve unless justice dispensation mechanism is reformed. There are two ways in which such reform can be achieved- through changes at the structural level, and through changes at the operational level. Changes at the structural level challenge the very frameworks itself and 11 D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, 437-38. 12 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802. require an examination of the viability of the alternative frameworks for dispensing justice. It might require an amendment to the constitution itself or to various statutes. On the other hand, changes at the operational level require one to work within the framework trying to identify various ways of improving the effectiveness of the legal system. It must nevertheless be borne in mind that the effectiveness of the justice dispensation machinery ultimately depends upon the way in which we conceptualize justice. Ø Changes at the ‘Structural’ level: a) Shift from conflict resolution to justice dispensation.
Indian Courts are attuned to resolving conflicts between the parties based on the pleadings presented by them. The Higher Judiciary, particularly the Supreme Court, while exercising its jurisdiction has devised several instruments for dispensing justice. Several innovative legal approaches have been used which can serve as a catalyst for Legal Reform. This is evident in the creation and development of the PIL jurisdiction. Similarly, attempts are to be made to decentralize judicial activism right down to the Lowest Court in the country, as well as to affect a paradigm shift in favor of justice dispensation. In this regard, the concept of Lok Adalats – or, people’s Courts- is particularly relevant .Prior to the introduction to the Legal Services Authorities Act, 1987, legal services by the states were provided under various government orders issued in 1976 which also organized Lok Adalats. The present form of Lok Adalats introduced under the Legal Services Authorities Act ,1987 has since then gained considerable popularity in providing cheap and speedy justice in an atmosphere of friendly spirit hardly resembling a conventional Court of law . It is the Lok Adalats which go to the people to deliver justice at their door step both , by settling disputes which are pending in Courts and also by resolving disputes which have not yet reached the stage of litigation in Court. The basis for the dispute settlement in the Lok Adalats system is the principle of mutual consent and voluntary acceptance of the solution with the help of Justice for the Poor: Judicial enforcement of socio-economic rights. Any discussion on justice for a billion people necessarily requires reference to socio- economic rights. Unlike western societies, socio-economic rights are important for an Indian for exercising his rights. Although the Indian Constitution does endorse these rights in the form of Directive Principles of State Policy in Part IV of the Constitution, it does not provide any mechanism for their enforcement. Therefore, the Indian Supreme Court has made them partly enforceable by extending the language of Article 21 of the Constitution. To paraphrase Justice Albert Sachs of the South African Constitutional Court, ‘the Supreme Court of India smuggled the rights from Part IV to Part III of the Constitution of This innovation of the Indian judiciary to enforce socio- economic rights has seen parallels in Courts of other jurisdictions as well. However, the question remains should India adopt a new model where the judiciary has a more active in the enforcement of these rights? This question has provoked a profound debate in which both side have exchanged persuasive arguments. Any strategy to resolve this dilemma must take into account the fact that the civil and political rights without socio- economic rights are inadequate for the poor and deprived. At the same time, due respect must be paid to democratic deliberation and resource intensive nature of these rights. The core rights represent the basic entitlements of every citizen, which cannot be left, to the ordinary political processes. In respect of the other socio- economic rights, they are dependent on the democratic prerogatives and therefore the traditional scheme of judicial review has to be modified. This strategy will ensure that socio-economic rights are not mere “Constitutional ropes of sand,” but are concrete Constitutional commitments. If the judiciary skillfully implements our Constitution, it may transform the society, which would go a long way to ensure socio- economic and human rights to the citizens of India. The rule of law, which is the bedrock of democracy, if strictly enforced, would enable us to bring economic progress for the nation also. Ø Changes at the ‘Operational’ Level: At the operational level, one is working within the
framework with the intention of fine- tuning it to achieve its objectives. At this level, we have to look at several factors, which affect the efficiency and the effectiveness of the All successful justice systems provide access to all citizens requiring their services, operate with a reasonable amount of efficiency and timeliness, make decisions and resolve conflicts in line with legal norms and widely held values, and operate in a predictable, transparent, and effective fashion. In my view, the biggest hurdle in administering justice for a billion people is delays. Delay in justice administration is the biggest operational obstacle which has to be tackled on a war footing. Intensive use of the ADR framework- privatization of dispute resolution Alternate Dispute Resolution, to my mind, is essentially the privatization of the dispute resolution process, whose success ultimately depends up on the Arbitration and Conciliation act, 1996, Section 89 of the Civil Procedure Code, 1908 and the Legal Services Authorities Act, 1987 as well as the Legal Services Authorities (Amendment) Act, 2002, which provides for an institutional framework for the resolution of disputes without the intervention of the Courts. But there is an urgent need for tightening this dispute resolution framework so as to reduce the burden on the Courts. We must take the Alternate Dispute Resolution mechanism beyond the cities. The Gram Nyayalayas as contemplated by the Law Commission should process sixty to seventy percent of rural litigation leaving the regular courts in the districts and the sub- divisions to devote their time to complex civil and criminal matters. With participatory, flexible machinery available at the village level where non- adversarial, settlement- oriented procedures are employed, the rural people will have fair, quick and in expensive system of dispute settlement. Only revision jurisdiction on civil matters and that too on questions of law would be left to the District Courts. Since rent and eviction suits constitute a considerable chunk of litigation in Urban Courts, and that they take on an average three or more years to get adjudicated in the Court at the first instance, the Law Commission has felt that an alternative method for these disputes is The Commission has also recommended that the provisions relating to Conciliation in the Arbitration and Conciliation Act, 1996, should be suitably amended so as to provide for obligatory recourse too conciliation or mediation in relation to cases pending in the Courts. Whatever mechanism we adopt our ultimate aim must be to ensure that not more than fifteen percent of the cases go for final adjudication. This is the trend in the legal system of develop countries where most of the cases are resolved by alternate dispute resolution mechanisms like conciliation, mediation, and arbitration. Pre-trial conciliation accounts for the disposal of a large number of cases. Tribunalisation: Creating specialized tribunals for resolving a particular variety of disputes has become the order of the day. Tribunalisation was an experiment that was initiated in the objective of ensuring expeditious adjudication by experts. But the experience of the last decades clearly showed that tribunalisation cannot be a panacea for resolving judicial arrears unless there is a supporting institutional framework to supervise the working of the The following steps may be adopted to ensure that tribunals achieve their objective: 1. Discontinuing with the practice of establishing Appellate Tribunals: The rationale for
establishing appellate tribunal is no longer valid due to the decision of the Supreme Court in Chandra Kumar v. Union of India, 13 where in the Court held that the jurisdiction of the High Court under Articles 226 and 227 forms part of the basic structure of the Constitution and cannot be taken away by a Constitution amendment. Hence, the practice of establishing Appellate Tribunals should be discontinued. 2. Adjudication of Constitutional Issues: Some Tribunals can adjudicate over
Constitutional issues (except the Constitutional Validity of the Parent Act) even when certain members of the tribunals are non-judicial members. These members are not trained in law and thus there is an inherent anomaly in the system as it prevails today. 3. Pendency of cases at the Tribunal: There is a huge pendency of cases in most tribunals
and this does not serve the ends of justice and defeats the very objective for which they have been set up. The tribunals today have become another parallel structure plagued with the same problems that prevail in the regular courts. 4. Superintendence over Tribunals: High Courts are entrusted with the power of
superintendence over tribunals by virtue of Article 227, but in practice they do not exercise this function. The Supreme Court in L. Chandra Kumar’s case has suggested that there should be “an independent supervisory body to oversee the working of the tribunals.” This recommendation should be implemented as soon as possible. It should be the duty of tribunals this supervisory body to ensure that the tribunals are able to discharge their functions in an efficient manner and ensure their independence. 5. Seat of Tribunals: Many tribunals presently exercise original jurisdiction in lieu of the
Civil Courts. However, their establishment is limited only to the four metropolitan towns. Since they replace the Civil Courts, permanent tribunals must be established throughout the country or alternatively, if there is not sufficient work, a Circuit Bench may be established. Criminal Justice Administration: Reform of the judiciary would be in complete without special emphasis and reforming the criminal justice administration system since delay in a criminal right, affects the core fundamentals right of the accused the and also of victim. The criminal justice delivery system in India has not achieved the ideals it was meant to achieve- of ensuring fair, inexpensive and speedy trial. Most of the fundamental principles of criminal law, such as the right to speedy trial, the right to legal aid, the right to fair trial, etc., have been declared to be fundamental rights by the Supreme Court through a process of judicial interpretation starting from the Hussainara Khatoon v. State of Bihar.14 The single most important reason for arrears in the criminal Courts is the lack of sufficient number of courts. The Law Commission has made this point succinctly clear in its 120th Report. Unlike civil justice delivery system, lack of Courts is not an administrative problem but a Constitutional one. Every state must be mandated by a statute to establish requisite number of courts based on population, litigation and other relevant criteria. This will provide the necessary imperative the right to speedy trial a reality in India. It may be 14 AIR 1979 SC 1360. noted that this idea is not as far- fetched as it seems to be: the Constitution already provides the exact number of representatives from each State to the Council of States, based on The other factor for the delay is the lack of separation between the law and order department and the investigative department of the police. Furthermore, the investigative departments works without any proper legal advice at the investigation stage. This has resulted in lack of professionalism, over work and resultant failure in conducting proper investigation. Both the 154th Law Commission Report and the Fourth National Police Commission Report recommended that the investigating agency be separated from the law and order department of the police. This would have several advantages: (a) It would bring the investigating police under the protection of judiciary and would greatly reduced the possibility of political or other types of interference; (b) Efficient investigation will reduce the possibility of unjustified and unwarranted prosecution and consequently a large number of acquittals; (c) It would result in speedier investigation and consequently quicker disposal of cases. The kind of independence and efficiency that is desired of the investigating agency can be obtained only if it is given a constitutional shape. Further, a concern similar to that of the investigation agency has been raised with regard to the prosecution machinery. It has been a common complaint that prosecutions are not being diligently and efficiently conducted, especially at the lower levels. This issue has particularly come up in the context of withdrawal of prosecution. Independent status for a Directorate of Prosecutions may be the only way in which the independence and efficiency of the prosecution agency can be In any event, taking a more holistic view, it must be realized that the onus to ensure the rule of law as a pre-requisite to socio- economic progress is not one to be discharged only by the courts through judicial innovation- it lies equally at the steps of the state end its Conclusion: In prologue, permit me to make certain observations on access justice that
often escapes us. Foremost is the aspect of delay. It would not be untrue to state that besides the misuse of laws by the lawyers and the need for amending the stringent laws; one of the primary reasons for the accumulation of huge backlog is the non-use of even the existing procedural laws which may prove helpful in court management. There is, of course, no single remedy for this problem. The solution has to be multi-pronged, consistent and applied uninterruptedly for a number of years as part of a comprehensive program me. Secondly, emphasis should be laid again on the need for training judicial officers. In this respect, the decision in All India Judges Association v. Union of India16, where the Supreme Court laid emphasis on the training to be imparted to the judicial officers, is crucial. The objective behind judicial training is to develop skills, knowledge, work culture and attitude in a judicial officer with a view to improve the quality and quantity of the output. Training the judicial officer and Court staff in this context gains prime importance. As only a fraction of the litigants alone can afford reaching the appellate court, the justice delivery to the poor and vulnerable must be improved at the trail level. Thus, the training in Court management technique and legal and technological issues to the subordinate judiciary carries great emphasis. Updating of legal knowledge on new laws and their implication, including issues relating to Intellectual Property Rights, Cyber Laws, and International Trade Law, the use of the latest technologies for better administration, utilization of the existing infrastructure for case management and other management practices etc. are to find in the curriculum. Training should also be made compulsory for the judges in the Appellate Court. We must constantly remind ourselves that it is our solemn duty to learn our trade, to discover if things are better done in other countries, and to fight for the removal of blemishes from our own system of justice. Thirdly, there are the issues of providing access to justice those who reside in such areas that are not accessible even physically. It is therefore of utmost concern that strategies and programmes be developed by the judiciary and the administration to provide them relief in a manner that compares with those in more favored situations. Finally, we need to deliberate on the methodologies to be adopted for encouraging justice dispensation through the traditional forum of Panchayats. This age-old institution has found new vigor with the introduction of the 73rd Amendment to the Constitution, and must accordingly be considered as another pillar in the edifice that symbolizes justice. Strengthening the institution of Panchayats and empowering people at the grass-roots level to resolve their disputes amicably would solve many of the problems that are faced by conventional justice dispensation machinery in its attempt to percolate to the lowest levels. This institution is also perhaps the solution to the problem of access to justice identified with those people living in remote regions who are cut-off from the civilized world. We have to prepare for the future. Let there be access to all irrespective of their stature, caste, creed, or religion. Enforce let equality as enshrined in our Constitution in the judicial


DA DECLARAÇÃO DE INCONSTITUCIONALIDADE DO ART. 273, DO CÓDIGO PENAL OU RECONHECIMENTO DA ATIPICIDADE MATERIAL DO FATO, ANTE A INEXISTÊNCIA DE RESULTADO JURÍDICO Por Bruno Haddad Galvão, Defensor Público do Estado de São Paulo O artigo 273, do Código Penal, foi introduzido pela Lei 9.677, de dois Assim como outras leis, tais como a de n.° 8072/90 e 8930/94, referida lei foi

A Brief Biodata of Prof. Mosaad Attia Abdel-Wahhab Employment: 1985-1989 : Assistant Researcher, Department of Food Technology, Food Technology and Nutrition Division, NRC. 1989-1990 : Researcher Assistant Present Department of Food Technology, Food Technology and Nutrition Division, NRC. 1990-1994 : Visiting Scientist, VAPH, Collage of Veterinary Medicine, Texas A&M Univer

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