The Problem of Access to Justice in India

“This is a Court of Law, young man, not a Court of Justice.” — Justice Oliver Wendell Holmes, Jr (1841–1935)

The Patron saint of Lawyers, Saint Themis, is depicted as a blindfolded Lady with a scale in one hand and a sword in the other. She is described as “the Lady of good counsel”, and is the personification of divine order and natural law. Unfortunately, what is supposed to be a symbolic representation of being blind to all forms of bias has instead ended up becoming the representative of being blind to discrimination and justice.

While even the Universal Declaration of Rights, drafted in the year 1948, gave recognition to two rights pertaining to ‘access to justice’ in the following words, implementation of the same has been far from ideal:

“Art.8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the Constitution or by law.

Art.10: 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 against him.”

According to the Supreme Court Bench in the case of Anita Kushwaha vs Pushap Sudan [Transfer Petition © 1343 of 2008], the following are the four main facets that constitute the essence of access to justice:

i) The State must provide an effective adjudicatory mechanism;
ii) The mechanism so provided must be reasonably accessible in terms of distance;
iii) The process of adjudication must be speedy;
iv) The litigant’s access to the adjudicatory process must be affordable.

But these criteria have not been fulfilled as thus:

i) The State must provide an effective adjudicatory mechanism;

To answer whether the State provided effective adjudicatory mechanism we need to look at some questions;

Are the buildings there? Yes.
Can everyone access those buildings? No.
Are there Judges inside all the Court Halls? No.

While India can still claim to have adequate Courtrooms (access to the same by people in remote areas is highly contested), as per the 87th Report before the Rajya Sabha, approximately 43% of Court Halls in the High Courts in India do not have Judges. There has been a continuous inordinate delay in appointment of the Higher and Lower Judiciary which in turn piles up cases and delays the process. As per the Press Information Bureau report dated March 3rd, 2016, there were 48,418 civil cases and 11,050 criminal cases pending before the Supreme Court as of February 19th, 2016.

Even if we assume that the victim makes it to the courts and manages to hire a decent lawyer, they may never even hear their proceedings. The Supreme Court has, till date, spent Rs. 91 Lakhs to install the latest microphone system for both the bar and the bench but alas, neither the Bar nor the Bench puts the mics to use. Imagine spending a lot of money to pursue your matter to the Supreme Court only to be unable to hear anything going on in there. It is said that justice should not only be done, but must also be seen to be done. In this case, at least in this context, Justice is visibly not done.

ii) The mechanism so provided must be reasonably accessible;

In terms of distance: While the Supreme Court is supposed to be approached only in rare cases, for the poor and the downtrodden, the thought of even approaching it is rare. It makes no logical sense for a poor person whose rights have been trampled to travel all the way to New Delhi from remote places such as North East India, or the tip of Kerala. While the idea of having 5 separate Court of Appeals (East, West, North, South and Central) was once mooted, unfortunately, it has remained just a moot point.
Accessibility for individuals: India has approximately 2 crore and 68 lakh people who suffer from different kinds of disabilities. Ironically, back in 2016, the Supreme Court had pulled up the Central Government for not having kept its target of making 50% of the Government buildings disabled friendly, and yet, Courts in India do not have disabled friendly washrooms or access ways.

iii) The process of adjudication must be speedy;

Keeping in mind point (i), that is Courts are understaffed and overburdened, it is patently wrong to assume that the Court would dispense matters quickly. Our Civil Procedure Code is over 100 years old and the basic Court practices are tedious and extremely complicated. Taking adjournments without reason had become such a common practice that certain High Courts specifically bar adjournments now. And yet, there are cases pending before numerous Courts for over 15 years. Recently, the High Court of AP and Telangana had decided that all old cases must be concluded soon. The Advocate Associations reacted to the news by going on a strike. The advocates contended that they could not be forced to rush the litigation process. So, instead of the matters getting wrapped up quicker, they got further delayed.

And all this is just phase one. What if the matter goes to appeal?

But that too is not the worst scenario. Imagine filing a case and having the other party file an objection on a minor point. The Judge rules in your favour on that minor point and the other party appeals on that minor point. And possibly appeals again, till finally, the Supreme Court hears the case. Even if the Supreme Court rules in your favour on that minor point, years if not a decade would have passed only for the matter to be sent back to the lower court to now decide the complete issue. The top five Central Tribunals in the country have a combined backlog of over 3.50 lakh cases with the Income Tax Appellate Tribunal alone having over 91,000 pending matters. This goes to show that even alternative specialised forums are overburdened and do not necessarily lead to quicker adjudication.

iv) The litigant’s access to the adjudicatory process must be affordable.

Is litigation affordable? No.

As they say, if it’s free, it’s probably not good. If it’s good, it’s probably not free. While the case of Khatri II v. State of Bihar [(1981) 1 SCC 627] did state that the right to free legal aid is a right covered under Article 21 of the Constitution, the legal aid Lawyer you will get is again overburdened and under-equipped in most cases. Let’s assume, as an example, that some big pharmaceutical company has wronged you. Because you can’t afford a lawyer, you accept free legal aid, whereas the Company hires the biggest Law firm in India with an entire panel of Lawyers. I know some brilliant lawyers who work with Free Legal Aid Centers, but it is humanly impossible for even them to go against entire truckloads of lawyers on the other side. And that is where the dream of access to justice falls flat.

Anywhere you go in the world, remedy under law must be paid for in the form of the legal expenses of lawyers’ fees (unless someone agrees to take up the matter pro bono), Court fees and filing expenses (translation, making copies to serve on other side, process fees, RPAD, Court Stamps etc) and the under table expenses. Even if you get declared as an indigent, you would not have to pay Court fees and process fees but you would still have to spend money to see the matter reach its conclusion — in a couple of years, if you are lucky.

In India, we theoretically do have a right to access the courts, but justice is not guaranteed.

Sourya Banerjee is a Mentor at One Future Collective.

Featured image: Glaser & Ebbs