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Access to Justice- Origin and Development

Paper Details 

Paper Code: AIJACLAV3RP042023

Category: Research Paper

Date of Submission for First Review: March 9, 2023

Date of Publication: December 29, 2023

Citation:  Dr. Rahul Mishra, “Access to Justice- Origin and Development", 3, AIJACLA, 36, 36-41 (2023), <https://www.aequivic.in/post/access-to-justice-origin-and-development>

Author Details: Dr. Rahul Mishra, Associate Professor, Manipal Law School, Manipal Academy of Higher Education, Bangalore





Abstract

So far as justice and law are concerned, these terms seem to be two but could be seen to have been complementing and supplementing each other. One cannot comprehend the true essence of justice without understanding the essence of law. The story goes that justice without Principle or Principle without Justice is Lame. Therefore, Access to justice has had various dimensions at the global level and has been spoken about much widely by the Jurists, Think tanks and Justices. In a democratic set up, it makes a lot of sense to have justice delivered to the needy and deserving common man/woman. Accordingly, from ancient times till date, various thoughts were developed in this regard in the west and eastern part of the world. India has also been able to decipher the term access to justice through the constitutional domains to which we all are bound to adhere to. The author here in this article, therefore, explore all such dimensions of access to justice in the light of developments that have taken place as of now. The author has been through the primary and secondary sources of research thereby doing justice to the tile of this paper. The pros and cons associated with justice system have been analyzed.

Keywords

Constitution of India; Common People; Judiciary; Justice; Law


Introduction

Having access to justice[1] has been termed as a right which must be perceived and constructed in the light of other related fundamental legally established principles.[2] It basically provides for the protective shield for other rights to be enjoyed by the common man and woman under any law or legal regime. This right does give rise to take care of needs which could be legally provided. Accordingly, the legal service provided must get such demands met in a reasonable manner. Such right basically guarantee to have access to free and fair process to get justice done or to have it whenever the rights of a common man or woman is infringed. The access to be had from courts/authorities must go through judicial root. It is supposed to be provided in reasonable manner to the affected party within reasonable time. Since time immemorial, justice has been the spinal cord of all administrative and judicial systems and accordingly, the needs of the contemporary society have been found to have been well addressed from time to time in the modern time frame, having access to justice has become bit difficult for the common man

The report goes that justice is a notion which puts emphasis on advancing actions or acts which are lawful and right. As per the idea expressed by PLUTO, justice is meant for giving very person his or her due in the right manner. Accordingly, justice can be termed as:

·         Being fair.

·         Being impartial

·         Morally correct

·         Justice to be delivered in time

·         Equity to be established.

·         Equality.

Accordingly, justice is to ensure untarnished treatment for all. It could be done when the aggrieved party has received it within reasonable time.[3] Whenever there is absence of any kind of discrimination in providing justice to the people, the fairness and equity are well taken care of by any judicial system. Justice does give rise to order and peace in each set of society.

Accordingly, it ensures equality in dealing with the distribution of societal burdens[4] as equality must be ensured to have been provided amongst equals in the olden times also, justice was considered to be the divine act to be performed by the people in charge of law-making process.

It was also known as natural in nature. In ancient times the rulers used to perform so many acts thereby getting the laws made and getting them enforced. Justice delivery was taken to be an act of God on mother planet earth. Hearings used to take place before his court thereafter judgment used to be given.


Access to Justice-Human Rights Perspective[5]

From the perspective of human rights, access to justice could be refer to power of the masses representing lower strata to takeover poverty thereby asking for remedial measures with the help of judicial systems of the State concerned[6]. Against issues being faced by them. This approach does require the following:[7]

·         Claim to be properly assessed.

·         Remedy to be provided for.

·         Capacity, Accountability, and empowerment to be the focal points of assessment.

As per the mandate given by office of the high commissioner on Human Rights[8],

“Access to such justice must be understood as main part of the rule of law process. It is basically a predominant right and is sine qua non to protect and spearhead the enforcement of all other human rights. It includes within itself right to have access to fair hearing in the courts, getting it within reasonable time.”

The mandate on access to justice has been given by the UNGA[9] as:

“ …….. We emphasize the right of equal access to justice for all, including members of vulnerable groups, and the importance of awareness-raising concerning legal rights, and in this regard, we commit to taking all necessary steps to provide fair, transparent, effective, non-discriminatory, and accountable services that promote access to justice for all, including legal aid. We acknowledge that informal justice mechanisms, when in accordance with international human rights law, play a positive role in dispute resolution[10], and that everyone, particularly women and those belonging to vulnerable groups, should enjoy full and equal access to these justice mechanisms………”[11]

As per the United Nations’ sustainable developmental goals (UNSDG 2030) list, goal no sixteen could be considered which says that:

“………rule of law has to be promoted both at international as well as national levels thereby enabling all to have access to justice…conflict resolution mechanisms need to be promoted as well………”

In any legal system[12], the delivery of natural justice depends upon the applicable legal framework and its observation becomes important to provide justice in affirmative[13]. As we know that law has to decide as to what needs to be given to a person as per his or her due. The entitlement must be determined by the law accordingly the circumstances are outlined according to which claims concerned could be made[14]. The person to whom such entitlement must be made has to be termed as RIGHT HOLDER and the one who bears the duty towards the right holder is to be known as DUTY BEARER[15]. It is seen and observed that law must provide for the rights accordingly justice is said to have been done if such rights are implemented or made available as per the legal framework. We have also seen in society the violations of such rights; accordingly, the holder of right is said to have been caused in justice. So, whatever injustice of this sort has been done has to be made good by circumscribing it within the four walls of constitutional ethos of any progressive nation. Such act so done is to be known as just act and accordingly, remedy is proposed to be given against injustice done to aggrieved party. Therefore, the presence of remedy or remedial approach is a must in a society to advance the reaches of justice to the common man and woman.[16]

We can say that very effective mechanism[17] therefore needs to be developed within any legal system so that access to justice is ensured to the holder of such right. Wherever means to access to justice shall be made available, it will be more meaningful to have justice of this sort provided as far as the old viewpoint to comprehend access to justice is concerned, it means to protect inter-human

relations[18]. Whereas the modern view calls for translating such right into action being taken. Rights are got to be implemented only where there is the presence of means to catch hold of lawful remedies.[19]

Courts are found to have been the enforcement agencies for the protection of such rights of the holder of it.[20] In courts, the seeker of remedy is to be given an opportunity for the presentation of his case to be made. So, the accessibility of courts[21] must be ensured to get justice done.  In modern-day timeframe, courts are to apply formative norms/laws so made or legislated by the parliament or State legislative assembly[22]. Justice takes the shape of legal obligation being put on States thereby showing respect to the rights of citizens by protecting them.


Door to Fairness-International Perspective

As per Sustainable Developmental Goal[23] no sixteen (2030) initiative, it was unanimously decided that:

“……...possibilities for accessing justice are to be explored to develop social and economic order of any society……policies, budgets, performance checks and balances, must be zeroed in on…it was agreed upon by the member states of United Nations that having access to civil issues must be taken into consideration and further possible ways to have it must be explored……”

Keeping in view the foregoing discussion[24], it could be said that so as to protect the rights of citizens, access to justice is sine qua non. It becomes sheer responsibility of State to put in order all mechanisms concerned for ensuring free and fair access to justice to all citizens. As per the impression made by Prof Baxi[25], it denotes the ability in the participation of the process through which it could be had. Here the financial capacity of the aggrieved party will have to be checked as to whether such party can approach courts for remedy. So, the legal aid methods have also been ensured which could be availed of by the aggrieved party who is not in position to fight his or her case out in the court of law.[26] Factors such as excessive costs, unwieldly-procedures, tardy and time-consuming justice, legal representation, topographical distance are some among many factors that destabilize the accessibility of courts as a dispute resolution mechanism. [27]Access to justice must also be ensured to the marginalized group of people. Accordingly, the right to have access to free legal aid is also provided under various legal regimes thereby enabling the needy and poor to have access to time bound justice.[28] It becomes incumbent upon State to generate funds for ensuring legal aids to people having poor background. Such an attempt is to be envisaged as an instrument useful to enable poor sections of society get access to fair and equitable justice. In case of public interest litigation, any public-spirited person can represent affected people in the court for their grievances to be redressed. Accordingly, justice is made available to all irrespective of different economic and social backgrounds of the people.[29]


Administering Justice:

Figure-1: Access to Justice in India

 

Figure-2: Pendency of Cases in courts-2015


At the international level also, there has been much debate about the access to justice regimes and the same can be seen through the international protocols and covenants as follows[1]:

  • The Universal Declaration of Human Rights (UDHR) has also recognized access to justice as right to be made available to all as a remedy to be provided by competent national judicial authorities[2].

  • The international protocol on civil and political rights (ICCPR) also speaks about the right to have access to justice to be ensured to all and effective remedy need to be provided if it is violated. It should also be ensured to all that such remedy has to be made available by the requisite judicial, legislative, and administrative established regimes.[3]

  • The general comment 32 also speaks about equality to be observed while approaching courts for justice.

  • Declaration on rights of indigenous people also takes a call on access to justice.

  • [4]Convention on the rights of persons[5] with disability[6] does talks turkey on access to justice.


Concluding Remarks

The story goes that justice provides for legal aid, related support services in timely manner. The reach of it is yet to be made affordable to the people representing lower strata in countries like India. The resources concerned must be made approachable to the needy and poor. As anticipated in our Constitution, the social[7] and economic justice must be ensured to all without any barriers. The common man and woman of countries like India must be ensured accessibility, affordability, and availability to access to justice. The ways to explore more possibilities towards accessing of justice must be overhauled.



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[2] Roach, K., & Sossin, L. (2010). Access to Justice and Beyond. The University of Toronto Law Journal, 60(2), 373–395. http://www.jstor.org/stable/40801410.

[3] Rahim, A., & Gural, M. C. (2013). How to Help Your Client Gain Language Access in Family Court. Family Advocate, 36(2), 18–20. http://www.jstor.org/stable/24623342.

[4] Naresh C. Singh. (2009). Legal Empowerment of the Poor: Making the Law Work for Everyone. Proceedings of the Annual Meeting (American Society of International Law), 103, 147–150. http://www.jstor.org/stable/10.53 05/procannmeetasil.103.1.0147.

[5] Badrinarayana, D. (2014). India’s State of Legal Education: The Road from NLSIU to Jindal. Journal of Legal Education, 63(3), 521–523. http://www.jstor.org/stable/42898396.

[6]Hasle, L. (2003). Too Poor for Rights? Access to Justice for Poor Women in Bangladesh. The Bangladesh Development Studies, 29(3/4), 99–136. http://www.jstor .org/stable/40795683.

[7] Singh, R. (2017). The March Of Law In India-The Long Road From Oppression To Justice. Journal of the Indian Law Institute, 59(3), 288–301. https://www.jstor.org/ stable/26826608.

[8] Kurtzer, J. D., Flowers, K., Booker, S. C., & Young, S. T. (2019). The Many Faces of Access Denial. In Denial, Delay, Diversion: Tackling Access Challenges in an Evolving Humanitarian Landscape (pp. 13–34). Center for Strategic and International Studies (CSIS). http://www.jstor.org /stable/resrep22610.8.

[9] Baxi, U. (1976). Access, Development And Distributive Justice : Access Problems Of The “Rural” Population. Journal of the Indian Law Institute18(3), 375–430. http:// www.jstor.org/stable/43950440.

[10] Columbia Center on Sustainable Investment (CCSI), UNDP, UN Sustainable Development Solutions Network (SDSN), & World Economic Forum. (2016). SDG16: Peace, Justice and Strong Institutions. In Mapping Mining to the Sustainable Development Goals: An Atlas (pp. 63–65). Sustainable Development Solutions Network. http://www. jstor.org/stable/resrep15880.21.

[11] McMahon, R. (2010). Equal Access to Justice for All. The American Journal of Economics and Sociology69(1), 206–207. http://www.jstor.org/stable/40607752.

[12] The Lord Mackay of Clashfern. (1992). Access to Justice. RSA Journal, 141(5435), 21–32. http://www.jstor.org/ stable/41378185.

[13]Ciftci, S., & Howard-Wagner, D. (2012). Integrating Indigenous Justice Into Alternative Dispute Resolution Practices: A Case Study Of The Aboriginal Care Circle Pilot Program In Nowra. Australian Indigenous Law Review, 16(2), 81–98. http://www.jstor.org/stable/26423249.

[14] Mayo, M., Koessl, G., Scott, M., & Slater, I. (2014). Concepts of justice and access to justice. In Access to Justice for Disadvantaged Communities (1st ed., pp. 19–34). Bristol University Press. https://doi.org/10.2307/j.ctt9qgz g3.7.

[15] Kumar, C. R. (2013). Legal Education, Globalization, and Institutional Excellence: Challenges for the Rule of Law and Access to Justice in India. Indiana Journal of Global Legal Studies20(1), 221–252. https://doi.org/10.2979/in djglolegstu.20.1.221.

[16] Anand, A. S. (1999). The Indian judiciary in the 21st century. India International Centre Quarterly, 26(3), 61–78. http://www.jstor.org/stable/23005468.

[17]Higgins, A. (2014). Legal Aid and Access to Justice in England and India. National Law School of India Review26(1), 13–30. http://www.jstor.org/stable/44283 780.

[18] Shukla, S. (2013). Social Justice in India: Constitutional Vision and Thereafter. The Indian Journal of Political Science, 74(2), 357–368. http://www.jstor.org/stable/24 7011 21.

[19] Sengar, D. S. (2003). PIL to ensure That Institutions Behave Lawfully: Public Access To Environmental Justice In India. Journal of the Indian Law Institute, 45(1), 62–79. http://www.jstor.org/stable/43952408.

[20] Kumar, A. K. S. (2013). The Neglect of Health, Women and Justice. Economic and Political Weekly, 48(23), 25–27. http://www.jstor.org/stable/23527205.

[21] Rhode, D. L. (2013). Access to Justice: An Agenda for Legal Education and Research. Journal of Legal Education62(4), 531–550. http://www.jstor.org/stable/4289 430.

[22] Sadurski, W. (1984). Social Justice and Legal Justice. Law and Philosophy, 3(3), 329–354. http://www.jstor .org/ stable/ 3 50 46 57.

[23] Roach, K., & Sossin, L. (2010). Access To Justice and Beyond. The University of Toronto Law Journal60(2), 373–395. http://www.jstor.org/stable/40801410.

[24] Hurter, E. (2011). Access to justice: to dream the impossible dream? The Comparative and International Law Journal of Southern Africa44(3), 408–427. http://www .jstor.org/stable/2402705.

[25] Ahmad, S. W., & Ali, M. A. (2006). Social Justice and The Constitution Of India. The Indian Journal of Political Science, 67(4), 767–782. http://www.jstor.org/stable/4185 6262.

[26]Gossett, W. T. (1954). Access to Justice: The True Significance of Legal Aid. American Bar Association Journal, 40(2), 111–112. http://www.jstor.org/stable/2571 8704.

[27] Higgins, A. (2014). Legal Aid and Access To Justice In England And India. National Law School of India Review26(1), 13–30. http://www.jstor.org/stable/442837 80.

[28] Kumar, C. R. (2013). Legal Education, Globalization, and Institutional Excellence: Challenges for the Rule of Law and Access to Justice in India. Indiana Journal of Global Legal Studies20(1), 221–252. https://doi.org/10.2979 /indjglolegstu.20.1.221.

[29] Hurter, E. (2011). Access to justice: to dream the impossible dream? The Comparative and International Law Journal of Southern Africa44(3), 408–427. http://www. jstor.org /stable/24027059.

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