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Access to Justice with Reference to Judicial Process in Criminal Justice System

Paper Details 

Paper Code: AIJACLAV3RP092023

Category: Research Paper

Date of Submission for First Review: March 9, 2023

Date of Publication: December 29, 2023

Citation:  Mr. Surja Kanta Baladhikari, “Access to Justice with Reference to Judicial Process in Criminal Justice System", 3, AIJACLA, 76, 76-85 (2023), <>

Author Details: Mr. Surja Kanta Baladhikari, Assistant Professor, Sister Nivedita University


It is a crying shame on the criminal justice system which allows long incarceration of men and women without trial. This directly raises a question on the enforcement of human rights. The present situation opens up discussion for maintenance and preservation of basic freedoms. However, we are denying human rights to those persons who might not have committed the offences which is found out after years of long incarceration in jails. This holds onto the basic freedom from being neglected and helpless human beings who have been condemned to a life of imprisonment and degradation for years. An expeditious trial and freedom from detention is not only part of human rights but also constitutionally guarded under Article 21 alongside Article 14 and 19.

Time has become to know when the state which runs the prosecution and ensures trial of cases by implementation of the Cr.P.C.,1973 and in cases of undertrials it has failed to follow such procedures. This also makes them victims of abuse of power who must be addressed on the harms suffered including physical or mental injury, emotional suffering, economic loss as a result of prolonged incarceration.

In such a situation considering the prison population to be 118% as per the Prison Statistics Report, 2018 it is uncertain to understand how are the basic amenities extended to undertrials with respect to their living conditions in the correctional homes is ensured.

Since the time of Hussaianara Khatoon, the plight of undertrials and led to the insertion of Section 436A Cr.P.C., 1973 along with the provisions of Section 41A, 41B, 41C and 41D of Cr.P.C., 1973.

This paper proposes to examine the situation of under tails in the present situation and propose solutions for the same.


Accused; Criminal Justice System; Human Rights; Under Trial; Victims


Aristotle classified justice into two categories: distributive and corrective justice. The categories on which justice evaluated on lawful and fair acts are just, all unlawful and unjust acts are unfair. Chaim Perelam being one of the philosophers stated that “each will defend a conception of justice that puts him in the right and his opponent in the wrong”. He propounded the concept of ‘to each the same thing’; ‘to each according to his needs; ‘to each according to his ranks’; ‘to each according to his legal entitlement’.

Gautam Buddha stated that the concept of justice is not about respecting the law but also showing non-conformity with the law when the law is evil.

This brings to the kinds of justice which are natural justice, economic justice, social justice, political justice and legal justice.

Concept of Access to Justice

Equal access to judicial systems is a fundamental right in democratic countries which India is part of. This is recognized by the ‘Council of Europe and the United Nations, 1951’. The principle pertains to “equal access means one should not be prevented from access to justice based upon gender, sexual preference, location, socio-economic condition, religion, right to representation, or disabilities”. Access to courts has been enshrined as a legal right in the European Convention on Human Rights, 1971[1] . The Universal Declaration of Human Rights, 1948[2] in Article 8 states “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”. E-justice systems should also implement the notion of ‘equal access’ in the cases where users are marginalized due to lack of technological literacy.

The concept of equal access[3] to courts is derived from ‘due process’ and ‘equal protection’ enshrined in the Fourteenth Amendment of the U.S. Constitution, gave the genesis of access to courts. In Griffin v. Illinois[4] the court changed an Illinois law which asked indigent criminal defendants to bear the cost of trail court papers to prefer an appeal. Similarly, in Smith vs. Bennett[5] the court struck down an Iowa law which asked the indigent prisoner to pay for a fee for filing a habeas application. Also, in Johnson v. Avery[6], the court went ahead to overruled a Tennessee regulation that stopped inmates from legal assistance amongst themselves based upon the principle of restricting access to courts for illiterates or prisoners disadvantageously positioned to receive legal claims.

The question of equal access to courts can be further elucidated in terms of access to materials in prison libraries. In the case of Younger v. Gilmore[7], which overturned down the California regulation, the court clarified that limiting materials in prison libraries is unconstitutional. Again, in the case of Lewis v. Casey[8], a class action was filed by twenty-two inmates of Arizona on behalf of all inmates in the Arizona State prison system relating to adequate facilities in the libraries. There was a survey carried by the district court, which found that the libraries were not adequate for providing legal assistance to inmates, especially to prisoners who don’t have physical access and also to illiterate and those who did not speak the English language. Following the same, a massive change in the structure of the library was also suggested. Though, the same was reserved by the Supreme Court, holding[9] that a specific injury is required to be proved by the inmate. Submissions reveal that an inmate cannot put forth required injury by showing a need of prison library or non-availability of legal assistance in a theoretical sense. The inmate must mention that the shortcoming is the reason which stopped him in pursuing his legal claims. The right to access would also require that the actual denial of access had prevented the plaintiff from resenting his legal claims, and his rights were distorted due to the denial of access.

The changing concept of ‘access’ to ‘justice’ can also be explained through ‘fair trial’ to quote from Varinder Kumar v. State of H.P., “The principle of fair trial now informs and energizes many areas of the law. It is a constant, ongoing, evolutionary process continually adapting itself to changing circumstances, and endeavouring to meet the exigencies of the situation — peculiar at times — and related to the nature of crime, persons involved, directly or operating from behind, and so many other powerful factors which may come in the way of administration of criminal justice, wherefore the endeavour of the higher courts, while interpreting the law, is to strike the right balance.”[10]

Need of Speedy Trial

Speedy trial is envisaged[11] in the Indian Constitution as Right to life under Article 21 of the Constitution that also relates to speedy trail which entitles oneself to get the relief from the court at the earliest. The power conferred under Section 309[12] and 313[13] of Cr.P.C.,1973 is often misused to mislead the trial and the court must take due notice of the same. The fast-track courts must not grant unnecessary adjournments and re-consideration of evidence applications during the trial. At the same time in the case of Best Bakery Case[14], the twenty-one accused persons were acquitted where the Supreme Court allowed the appeal filed by the National Human Rights Commission, it can be said that though the court did not let the misuse of Section 309 of Cr.P.C.,1973 justice hurried is worried. Docket explosion has been a major concern in the Indian judiciary, that is, the dispensation of the justice system and relate it whether justice fits in all forms. People approach courts with great hopes for redressal of their grievances, people have faith in the justice delivery system that is why they approach the courts and refrain from taking law into their hands. This makes an obligation upon the justice delivery system to deliver prompt and affordable justice to the people who approaches the court. Delayed justice denotes the time consumed while disposing a case exceeding the reasonable time within which a case is usually disposed by the court. It is understood that a case cannot be heard and disposed off overnight but delay in justice system also indirectly makes the accused the victim of the justice dispensing system who remain as undertrials in the jails leading to overcrowding[15] where the number of prisons don’t increase with the occupancy rate in the prisons. The Supreme Court time and again has observed that prisoners cannot be confined within deplorable conditions in the jails as they have a right[16] to proper and fair trial. The wrongs relate to inadequate legal aid, marginalizing mostly the minority and subaltern voices of the society such as Muslims, Dalits and Adivasis, improper enforcement of Section 436A Cr.P.C.,1973, rare production in the courts making them victims of the justice delivery system. In 2015 the number of undertrials was 2.82 lakh which increased to 2.93 lakhs in 2016 highlighting a major concern - whether justice is speedy, efficient and reasonable in the Indian legal system. The victim is not only doubly victimized due to the delay in the justice dispensing system but also the offender becomes the victim of the delayed justice dispensing system.  

Sri K.F. Rustamji, Member of The National Police Commission: Tour Note no. 15th December, 1978: the Undertrials of India observed “……The undertrials consist of large variety of persons. Hundreds of them are dumb, simple persons, caught in the web of the law, unable to comprehend as to what has happened, what the charge against them is, or why they have been sent to jail. These are the people without a calendar or a clock, only a date in a court diary, extended from hearing to hearing……. There are girls sent to jail because the Ashram had to be closed down after some sort of scandal and several girls ran away, and they are now kept in the jail in “protective custody”, tearful, unwilling and positively wanting no protection at all. Then there are more of them charged with ticketless travel, possession of weapons, or illicit liquor or some minor infraction of the law…… A cause of concern for any student of law is the fact that several of them have ben undertrials for more than five years”.

The Justice Delivery System also Depends on the Following Factors:

a)     Frivolous appeals: Whether the appeals which are preferred is to prevent its executions? Or there has been really miscarriage of justice? There has to be a process of control or strict guidelines in condonation of delay in regard to Section 5 applications under the Limitation Act. The first appeal in a civil suit[17] cannot be filled regarding decree passed in petty suits such as properties which does not exceed a value of Rs. 10000/- and in case of second appeal in a civil suit, it cannot be filed if subject matter of original suit to recover money[18] is not exceeding Rs. 25000/-. It is time for the legislature to re-think and re-look in the financial limits which cuts down on the number of appeals preferred.

b)     Success of Alternate Dispute Resolution (ADR): It depends whether people trust ADR as they trust court proceedings? There are only three mediation centres in India which projects the sheer lack of ADR hubs or initialization of the ADR mechanism is another important step in curbing docket explosion.

c)      Vacancy of courts: The lower judiciary vacancy[19] is another point of discussion which remains a hindrance towards access to justice. Presently as noted by the Supreme Court of India there are vacancies of 5133 posts, which makes the people at large victimized with delivery system i.e., it is the lower courts where the matters are first heard, and relief is granted and consequently due to vacancies in the lower judiciary it takes inordinate delay for a case to come up.

d)     Digitization of court records, National Judicial Data Grid, E-courts project are initiatives of the Government which otherwise helps in curbing docket explosion. However, there is a need for better implementation as regards to the availability of server copy of orders/decrees and cause lists of the lower judiciary, where the clients still have to rely on the voice of their advocates in regard to the case updates. However, in the recent development, it is a mandate to register the mobile number of the petitioner to receive the updates.

Administration of Justice:

Article 38 of the Indian Constitution[20] which deals with social welfare of the people is interconnected to that of Article 14 and 21 which means that there cannot be enjoyment of Fundamental Right enshrined under Article 14 and 21. The courts have time and again accepted the contention as to how can a citizen who is now a victim of crime will be able to enjoy their fundamental right under Article 14 and 21 if the protection of social welfare is not ensured for the citizens which includes protection of their socio-economic and political rights. The present penal laws provide for punishment to meet the ends of law and administer justice on the law violators, wrong doers, criminals, or offenders for the breach of legal norms or code of conduct which is essential to be followed by the people. Perhaps the ulterior motive of the criminal justice system is to secure the society from crimes by safeguarding its individuals. In order to act as an umbrella to the individuals of the society the legal system prescribes punishment which is one of the tools to control crime. M.J. Sethna[21] stated “punishment is some sort of social censure, and not necessarily the involving or inflicting of physical pain”.

Problems behind Administration of Justice:

·         Delayed justice dispensing system.

·         Proper manpower in courts.

·         Raising the retirement age of judges 

Administration of justice is closely linked to speedy and effective access to justice which directly represents the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; to make it a constitutional right it was recommended by the National Commission working on review of the Constitution that access to speedy justice can be incorporated as fundamental right[22].

Supreme Court in Hussain & Anr. v. Union of India[23] while discouraging the practice of boycotting the Court observed that: “One other aspect pointed out is the obstruction of Court proceedings by uncalled for strikes/abstaining of work by lawyers or frequent suspension of court work after condolence references. In view of judgment of this the Court in Ex. Captain Harish Uppal v. Union of India[24], such suspension of work or strikes are clearly illegal, and it is high time that the legal fraternity realizes its duty to the society which is the foremost. Condolence references can be occasionally periodically, say once in two/three months and not frequently. Hardship faced by witnesses if their evidence is not recorded on the day they are summoned or impact of delay on under trials in custody on account of such avoidable interruptions of court proceedings is a matter of concern for any responsible body of professionals and they must take appropriate steps. In any case, this needs attention of all concerned authorities – the Central Government/State Governments/Bar Councils/Bar Associations as well as the High Courts and ways and means ought to be found out to tackle this menace. Consistent with the above judgment, the High Courts must monitor this aspect strictly and take stringent measures as may be required in the interests of administration of justice.” The court can have inherent jurisdiction upon the office bearers who are supporting strikes or asking the courts to rise due to condolence ceremonies, whereas it can be conducted occasionally i.e., once in two-three months. And the person enforcing such strikes i.e., the signatories of the bar association can be punished for contempt of court.

Access to Justice in Relation to Criminal Justice System

The concept of equal access before the law is said to be the core principle for the functioning of legal systems in system which later finds its place in the justice system. The word ‘access’ needs to associate with clinical approach in law which later is associated the word ‘justice’ which can be referred as fair, equality, open, decent process. This unfolds the discussion of ‘procedural justice’ which is the criteria to determine whether true justice has prevailed or not. It needs to be understood that justice cannot only be perceived to see as justice can no longer be given the role of only proper resolution of disputes. Simultaneously it also needs to be kept in mind that people perceive justice often as the ‘outcome’ or ‘result’. However, the traditional view is more associated with focal point of ‘access’ is towards the court door. The term later was concerned with citizens access to lawyers or legal aid. This encourages a discussion of quality of legal aid when compared to ‘access in legal aid’. Factors like racism, poverty, educational impoverishment and gender must be taken into consideration to remove the existing inequalities which exist between the citizens in the society. This in a way also protects their social rights and increases more access to courts because literally there may be access to courts but there may not be access to courts. As social justice is associated with reality which can only be achieved through procedural justice. Dambo Beheer BV v. Netherlands[25] the court elaborated the meaning of equality of arms means that each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent”.

The Following Factors Governs Access to Justice:

         i.         Law enforcement network driven by citizen: This comprises of two distinct entities one being the enforcement division of public regulatory bodies and other being police organization. Regulatory bodies are in the position to control whether a civil or criminal action would be instituted incase of violation of law whereas police decide in respect of criminal matters only. This gives a sense of discretion to the police to decide whether to exercise the legal jurisdiction of matters or not.

       ii.            Defendant network: this is made up of citizens who are said to have disobeyed the law including their private or public counsel. Citizens often get the choice in deciding to report a crime and cooperating with the stakeholders which has direct relationship with the defendant/accused.

     iii.       Prosecution network: Prosecution presently governs the entire criminal justice system which involves information, evidence, plea bargain, compounding of offence, withdrawal from persecution including strategy preparation for judicial proceeding. 

     iv.            Adjudicative network: This network identifies the position of the pending litigation associated with the fate of defendants. This is state often becomes crucial for the under trials as presently India faces 71.1% of prison population as under trials.

       v.            Correctional service network: This organization takes into consideration the rehabilitation ensuring their rights of parole, bail, appeal from time to time for the convicts and undertrials. West Bengal in 2021 a person from Nepal was released from Dum Dum correctional home after forty-one (41) years as an under-trial. This tell us about a help less situation where the stakeholders failed to legitimize the timeline of a person in a correctional home.

     vi.            Appellate network: This network ensures the appeal stage where the defendants deserves a chance to prefer and application to decide a question of law. 

Role Stakeholders in Criminal Justice System in Access to Justice with Reference to Under-Trials

International Regime:

The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985:[26]

The Declaration defines “Victims" of abuse of power as “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights” – This denotes that the inaction of states to find out as to who have completed the half of the sentence for the offence the person is accused of. This results in making the accused the present victims of the system of criminal justice system. 

“States should consider incorporating into the national law norms proscribing abuses of power and providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support” – This impacts the undertrials by curtailing their fundamental rights which are jeopardized resulting in loss of their valuable years of life in long incarceration in jails.

“States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts” – Hussainara Khatoon resulted in the incorporation of Section 436A of Cr.P.C.,1973 and the concept of bail on personal bonds. Still the

United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2013[27]

The UN enumerates the following rights for the accused’s:

Principle 1 which pertains to “Right to legal aid.”

Principle 7 which pertains to “Prompt and effective provision of legal aid.”

Principle 8 which pertains to “Right to be informed.”

Guideline 3. Other rights of persons detained, arrested, suspected or accused of, or charged with a criminal offence.

“States should introduce measures:

(a) To promptly inform every person detained, arrested, suspected or accused of, or charged with a criminal offence of his or her right to remain silent; his or her right to consult with counsel or, if eligible, with a legal aid provider at any stage of the proceedings, especially before being interviewed by the authorities; and his or her right to be assisted by an independent counsel or legal aid provider while being interviewed and during other procedural actions;...” -  India having incorporating the provisions of section 41A, 41B, 41C, 41D of Cr.P.C., 1973 the criminal justice system has failed to recognize critically the various stages of trial such has the stage of taking cognizance; discharge; withdrawal from prosecution; charge and alteration of charge where the possibility of holding the trial and completing the trial can be decided to limit long incarceration.

(i) “To ensure that persons detained, arrested, suspected or accused of, or charged with a criminal offence are advised of their rights and the implications of waiving them in a clear and plain manner; and should endeavor to ensure that the person understands both;…” – Long incarceration gives the responsibility upon the District Legal Services Authority to scrutinize the number of undertrials who has already completed half of the imprisonment for the offences in which they are accused of along with preferring jail appeals or appeal bail whichever is applicable.

“Guideline 5. Legal aid during court proceedings - (a) To ensure that the accused understands the case against him or her and the possible consequences of the trial”; - This becomes another reason for the failure of the Plea Bargaining in India where the lawyers are not adequately trained to understand the process of Plea Bargaining to explain the accused persons who are awaiting trail to avail this opportunity to save themselves from long incarceration.

The primary stakeholders of the criminal justice system are the Police, Court, Legal service institution, Correctional Home, who has a responsibility in making the legal system mobilized where the question raised is how the legal process is invoked or capable to take action for the accused and the victims. The legal system can be categorized as reactive when the legal system reacts or addresses the concerns of the accused or victims and the legal system can be categorized as proactive when the system addresses the concerns on its own.

In Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar[28] it observed that

“An alarmingly large number of men and women, children including, are behind prison bars for years awaiting trial in courts of law. The offences with which some of them are changed are trivial, which, even if proved, would not warrant punishment for more than a few months, perhaps for a year or two, and yet these unfortunate forgotten specimens of humanity are in jail, deprived of their freedom, for periods ranging from three to ten years without even as much as their trial having commenced.”

Time has become to know when the state which runs the prosecution and ensures trial of cases by implementation of the Cr.P.C.,1973 and now in case of undertrials it has failed to follow such procedures which is established by law. Thus, violating Article 21 alongside Article 14 and 19. In such a situation considering the prison population to be 118% as per the Prison Statistics Report, 2018. In this situation how are under trials extended living conditions to undertrials in the correctional homes.

“It is high time that public conscience is awakened and the government as well as the judiciary begin to realise that in the dark cells of our prisons there are large number of men and women who are waiting patiently, impatiently perhaps, but in vain for justice-a commodity which is tragically beyond their reach and grasp/ Law has become for them an instrument of injustice and they are helpless and despairing victims of the callousness of the legal and judicial system”[29]

In the case of Najeeb[30], The Supreme Court recently took into consideration the five and half years which was spent by the accused as an under trial to consider bail. The court referred to Shaheen Welfare Association v Union of India[31] which stated that ‘gross delay’ in trial violates fundamental rights under Article 19 and 21 which is a ground for consideration of bail. 

The court tried to balance the sense of freedom with that of terror and security laws by establishing the Najeeb principle which can be used of under trials referring to Paramjit Singh v State (NCT of Delhi)[32] and Babba alias Shankar Raghuman Rohida v State of Maharashtra[33] where a stringent criminal legislation considers prolonged delay in trial as a ground for grant of bail.

Figure 1: Position of Under Trials Source: Crime in India Report 2016-2020.

Figure 2: Occupancy rate in prisons which would also include under trials (Source: Crime in India Report 2016-2020.)


Presently in India we do not have data in which categories of offences there exist the maximum number of undertrials, the reason for pendency of trial of their cases or how of them have completed half of the imprisonment term for which they are accused of.

At the backdrop of various legal safeguards for accused persons to upheld the right to fair and speedy trial it becomes important to take the decision of the case more seriously towards undertrials with respect to their rights, timeline of trial, categorisation of their cases, along with the criteria and the number of cases which qualified as per section 436A Cr.P.C.,1973.

[1] Article 6.

[2] Universal Deceleration of Human Rights, [1948].

[3] Stephen I. Vladeck, ‘Boumediene’s Quiet Theory: Access to Courts and The Separation of Powers’, 84:5 Notre Dame L.W. [2018].

[4] [1956] 351 U.S. 12.

[5] [1961] 365 U.S. 708.

[6] [1969] 393 U.S. 4831.

[7] Younger v. Gilmore [1971] 404 U.S. 15.

[8] Lewis v. Casey [1996] 518 U.S. 343.

[9] Id.

[10] [2020] 3 SCC 321, para 14.

[11] Varun Chachar & Pariksheet Siriohi, ‘Docket explosion of courts in India’ <>  accessed 07 November 2019.

[12] Power to postpone or adjourn proceedings.

[13] Power to examine the accused: “No explanation is forthcoming from the statement of the accused under Section 313 Cr.P.C.,1973 as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused,” See also, ‘Asok Kini, Accused’s silence about matters he is expected to explain leads to an adverse inference against him’ accessed 07 November 2019. 

[14] ‘Rising number of undertrials shame’ https://www. accessed 07 November 2019. 

[15] Vinita Govindarajan, ‘Jails at 14 per cent over capacity, two in three prisoners undertrials’ accessed 07 November 2019.

[16] Id. 

[17] Section 96 of the Code of Civil Procedure, 1908.

[18] Id. Section 100.

[19] Krishnadas Rajagopal, ‘Lower judiciary vacancies unacceptable: SC’ <> accessed 07 November 2019.  

[20] Constitution of India.

[21] M.J. Sethna, Society and The Criminal 236 (N.M. Tripathi Pvt. Ltd. 1971).

[22] Anita Kushwaha v Pushpa Sudan [2016] 8 SCC 509, para 31.

[23] [2017] 5 SCC 702.

[24] Writ Petition (civil) 132 of [1988].

[25] [1993] 18 EHRR 213.

[26] ‘UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ <https://www.unod .pdf> accessed 23 February, 2023.

[27] UNODC ‘United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems’ < n-reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf> accessed 23 February, 2023.

[28] W.P. no. 57 of [1979].

[29] Ibid.

[30] Union Of India vs K.A. Najeeb Criminal Appeal No. 98 of [2021], Supreme Court of India.

[31] [1996] SCC (2) 616.

[32] [1999] 9 SCC 252.

[33] Criminal Appeal no. 98 of [2021], Supreme Court of India.

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