The Myth of Access to Justice in India

March 23rd, 201310:43 pm @    


Introduction

Justice Gordon Hewart while delivering the landmark judgement of Rex v. Sussex, had remarked that “not only must justice be done; it must also be seen to be done.” Thus it would not be wrong in concluding that the rule of law prevails in providing not merely access to justice but in providing “Access to law”.

Access to Justice ImageThere is a wide gap or difference between the law existing in the books and the law actually practised. It would not be wrong in bluntly pointing out that laws are like cobwebs where the small flies are caught and the bigger ones easily break through! We have been talking a lot about the concept of rule of law, but the very idea of this concept is futile if the justice delivery mechanism cannot meet the needs of the time. The mere presence of justice delivery mechanism provides what we call “access to justice” and their efficient functioning provides “access to law”. So merely setting up of institutions responsible for providing relief to the victim does not help often. The question that arises is that whether it is suitable to ask for justice if it is not even worth obtaining.

Huge backlog of cases in Indian Judiciary

The common man seems to have completely lost faith, trust and confidence in judicial wing due to the huge backlog of cases. It is not difficult to believe that a poor litigant would leave up the litigation, rather than running from pillar to post for getting justice. This pendency of cases in Indian courts is swelling up at an alarming rate. Over 3.5 crore cases are pending in courts across the country

Poor Judge-Population Ratio

Access to justice has an implied meaning in the speedy redressal of the grievances of the people. Unfortunately, the current judge population ration in India is merely 13 per million population. This ration is very dismal if we compare it with nations which have lesser population. Ex:- The sanctioned strength of judges per million population in USA is 107, in UK it is 51, in Australia it is 42 and in Canada it is 75. Even the apex court in the Third All India Judges Association case felt the need to reform the judicial setup by changing the ration from 13 per million population to 50 per million population.

Low Rate Of Conviction

The low rate of convictions specially in criminal cases, has proved to be a menace. The reasons such low rate of conviction include:-

1)      Unscientific investigation by the police

2)      Lack of co-ordination between the police officials

3)      Inadequate trained police personnel

4)      Issue of Hostile witnesses

5)      Dearth of efficient prosecutors

Delayed and Slip Shod Investigations

We have developed a habit of holding judiciary solely responsible for the gross injustices done. Often there are debates as to which organ is responsible for rendering justice to the people is futile in India. The discussion regarding the predominance on any single organ is futile. Thus judiciary alone cannot be held liable.  Often the judiciary is rendered helpless due to the unscientific, delayed investigation done by the police. Often, the destruction of the evidences also leads to miscarriage of justice.

Repeated Adjournments

In any criminal case, once the examination of the witnesses begins, it has to continue uninterrupted until all the witnesses are examined. This rule appears to be only in the books and is openly flouted in the Indian courts. The Apex Court once even remarked that “We are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity.” Often reasons such as “inconvenience to the advocate” are considered as special reasons to bypass the mandate of section 309 of the Criminal Procedure Code [power to court to adjourn proceedings]

Access to Justice for Marginalised People

We even have a separate provision, Article 39A which aims to secure and achieve ‘equal opportunity to justice.’ ‘Access to Justice for Marginalised People’ is a programme initiated by the Department of justice with the help of UNDP. The target group for this programme includes the poor and marginalized class. The aim is to make them aware of their rights and at the same time help the local justice delivery system to ensure justice to the poor. The next phase of “Project on Access to Justice for Marginalized People (A2J)”, is planned to operate from 2013-2017. However this project is meant to be implemented in just 7 States of Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh, Uttar Pradesh, Odisha and Rajasthan, covering merely 87 districts. Thus much cannot be expected out of this scheme which is operating in just 87 districts of a nation like India.

Things are not the same what they usually appear to be. The story behind the scenes, which remains untold, is completely different and a harsh one. Maybe we don’t realise it, but what we have been craving for, since the inception of our constitution is merely Access to justice and not Access to law. A quote of Sir Frederick Douglass very well summarises the need to have access to law and not merely access to justice.

“Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.”- Frederick Douglass

Thus we see that Access to justice in real form and in real sense still continues to be a myth. It is high time justice delivery mechanisms realize the difference between access to law and access to justice and restore the lost faith and deteriorating confidence of common man in the justice delivery mechanism at any cost.

Article by:

Akshay Pathak

Picture Courtesy: asclaw.org

Article by

Akshay is an avid traveller, a passionate writer and a student of Amity Law School Delhi (GGSIPU).

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