ACCESS TO JUSTICE CONSTITUTIONAL DIMENSIONS

Nothing rankles more in the human heart than a brooding sense of

injustice. Illness we can put up with. But, injustice makes us want to
pull things down. When, only the rich can enjoy the law, as a doubtful
luxury, and the poor, who need it most, cannot have it, because, its
expense puts it beyond their reach, the threat to the continued existence
of free democracy is not imaginary but very real, because democracy's
very life depends upon making the machinery of justice so effective that
every citizen shall believe in and benefit by its impartiality and
fairness.

- MR. JUSTICE BRENNAN

INTRODUCTION:
Law is the means and justice is the end. In order to reach the destination (justice), the
means to reach the destination (law and legal system) must be established. It should be
familiar and made available to all. Whatever is right is just and vice versa. Rule of Law
recognize and protect the rights which forms the interest of the individuals. By the Roman
maxim, Ubi jus ibi remedium wherever there is a right there is a remedy. Machinery of
Justice embodied by Law offers the remedy whenever the right is exploited or breached
even if it is against the State or any other powerful body. For the rights of the citizen to be
recognized and enforced; and enable the legal disputes or conflicts, which certainly arise in
every civilised society, to be resolved in an orderly way, access to justice becomes
necessary. Access to justice is a human right which imparts life and meaning to law. The
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State is the supreme custodian of the right to access justice and it is the legitimate expectation
of the citizen to believe that whenever the sanctity of this right is threatened, the State would
intervene and protect their right. It is the duty of the State not just to bring culprits to the
book, but it goes to the extent of imposing positive duty on the State to reinstate it all that was
its due.
It can be said that access to justice has varied aspects. The integral constituent of
right to access justice is accessibility to courts. To access justice through the Courts of Law,
the element of legal service becomes a pre necessity. In this essay, these aspects of right to
access justice is analysed in the light of Constitution of India.

ACCESS TO COURTS AS THE CONSTITUENT OF ACCESS TO JUSTICE:

Access to Justice is defined in the Blacks Law dictionary as the ability within a
society to use courts and other legal institutions effectively to protect ones rights and pursue
claims. Thus, access to justice essentially means the access to courts.
The Constitution of India recognised the right to access to courts, particularly to resort
to Supreme Court (Article 32) and the High Court (Article 226) by bestowing the power of
Extraordinary Writ Jurisdiction on these courts. The right under Article 32 to access the
Supreme Court in itself is a fundamental right guaranteed by Article 32 of the Constitution. In
Re under Article 1431, Constitution of India, (Keshav Singh case), the Supreme Court said
The existence of judicial power in that behalf must necessarily and inevitably postulate the
existence of a right in the citizen to move the court in that behalf, otherwise the power
conferred on the High Courts and this Court would be rendered virtually meaningless.
Kesavananda Bharti v. State of Kerala2 recognised judicial review as part of the basic

1 AIR 1965 SC 745

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structure of the Constitution which means that even an amendment cannot take the power of
judiciary to review which is vested with the Courts of the country.3
The Courts in India are meant to be accessible to every citizen in the same manner
equally and indiscriminately by virtue of Article 14 of the Constitution. Administration of
justice, which is the duty of the Courts, depends largely on professional expertise involving
the process of applying law to the facts, legal submissions, examining the witness, etc. Thus,
access to courts includes access to legal service.

ACCESS TO LEGAL SERVICE AS A COMPONENT OF ACCESS TO COURTS :

The Constitution of India through Article 14 guarantees Right to Equality which
declares that the state shall not deny any person equality before law or equal protection of
laws within the territory of India. This provides every citizen in India equality before law
irrespective of his social, economic and political stature. Thus the rule of law provides for
equal access to justice to all the citizen but what disadvantages the poor and the socially
backward in the Indian legal system is that they lack the knowledge that law is a social tool
structured or devised as a means to access the justice and it does not regard social and
economic factors of the justice-seeker. They have always come across laws for the poor
rather than laws of the poor.4
As one American Jurist, Prof. Vance of Yale says, What does it profit a poor and
ignorant man that he is equal to his strong antagonist before the law if there is no one to
2 1973 (4) SCC 225

3 189th Report of Law Commission

4Hussainara Khatoon and Ors. Vs Home Secretary, State of Bihar, Patna; AIR 1979 SC 1369
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inform him what the law is? Or that the courts are open to him on the same terms as to all
other persons when he has not the wherewithal to pay the admission fee?
In India, the indigent and socially disadvantaged class has always considered that the
end point of justice lies beyond their reach because the means to justice i.e., the law and the
legal system provides them with numerous hurdles. For the socially disadvantaged class of
citizens in India who are poor and illiterate, law remains to be mysterious and justice remains
as a distant dream.
Article 21 of the Constitution provides that no person shall be deprived of his right
to life and personal liberty except in accordance with procedure established by law. Such a
procedure which restricts the fundamental right should be fair and effectuate; and not
arbitrary.5 The principle of reasonableness is an essential element of equality or non
arbitrariness and it pervades Article 14. The procedure contemplated in Article 21 should
answer the test of reasonableness for it to be coherent with Article 14. Therefore, a fair legal
procedure is implicit in the provision of Article 21 of the Constitution.
The essential ingredient of the fair and just procedure is making available in the court
process legal services to both the parties of the dispute.6 By legal service, it is meant that
professional assistance in accessing the light of justice. Justice cannot be said to be rendered
when one party to the dispute is assisted by a professional of law while the other side is
devoid of the same quality of assistance. The principle of natural justice audi alteram
partem meaning no side should be condemned unheard may be improvised and stated that
no side should be deprived of services accessible to other side. The right to be heard would

5 Maneka Gandhi v. Union of India, [1978]2SCR621

6 Maneka Gandhi v. Union of India, [1978]2SCR621

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be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.7
The process of establishing judicial justice leans largely upon the legal assistance provided by
the professional of law. Equal justice cannot be said to be achieved if one side is deprived of
such professional expertise.

PROFESSIONAL ASSISTANCE IS THE INTEGRAL PART OF LEGAL SERVICE:

Article 39-A and Article 22(1) are the two provisions in the Constitution which seeks
to promote justice on the basis of equal opportunity by giving emphasis on essential
requirement of professional expertise in the process of administration of justice.
Article 22(1) embodies the sense of justice by providing the right to consult a legal
practitioner in order to seek justice in the court of law. The said Article provides that No
person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice. Dr. Ambedkar, in the Constituent Assembly
debates8, said that the substance of the law of due process is provided in the above
mentioned Article.
Moreover, to emphasise on equality before law and to promote justice on the basis
of equal opportunity to all, Constitution was amended9 to include Article 39-A which
provides for equal justice and free legal aid as part of the Directive Principle of State Policy.
Article 39-A provides that The State shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal
7 Douglas, J.; the U.S. Supreme Court, in Raymond Hamlin

8 Constituent Assembly Debates Volume IX

9 Constitution (Forty-second Amendment) Act, 1976

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aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other disabilities.
The above mentioned provisions of the Constitution tend to emphasize on the
essential requirement of professional expertise in the process of seeking justice. While Article
22(1) states that no person shall be denied the right to consult a legal practitioner of his
choice, Article 39A underlines the duty of the State to provide such legal assistance to those
who suffer from economic and other disabilities.
Legal assistance seems to be a luxury in this country which the poor and indigent
cannot buy at all. Therefore the State was entrusted with the duty to offer the poor with the
much needed legal assistance. The crucial words in Article 39A are to provide legal aid by
suitable legislation or schemes or in any other way. Thus the Article directs the State to
ensure that the operation of legal system promotes justice on the basis of equality.
Legal Service Authority Act 1987 is the statute which gave effect to Article 39A
which comes under the Directive Principle of State Policy. The Act is said to accomplish the
objective of the Article 39A which is to provide free and competent legal services to the
weaker sections of the society; to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities.
It is genuinely not possible to make available the benefits of the legal process to the
poor, to protect them against injustice and to secure to them their constitutional and statutory
rights unless there is a nationwide legal service programme to provide free legal services to
them.10 Hence, to provide justice at the doorstep of the indigent and socially backward class
in India, the Legal Service Authority Act, 1987 envisages various establishments for
providing legal assistance throughout the country. National Legal Service Authority
(NALSA) is the supreme body in the hierarchy of various other authorities and is constituted
10 Hussainara Khatoon and Ors. Vs Home Secretary, State of Bihar, Patna; AIR1979SC1369
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to formulate policies and schemes for providing legal services under the Act. Under NALSA,
in every State a State Legal Service Authority is established to enforce the policies and
schemes laid down by NALSA and to provide legal aid to the people of the State. And then
there is District Legal Services Authority constituted in every District to implement Legal Aid
Programmes and Schemes in the District and under it Taluk Legal Services Committees are
also constituted for each of the Taluk or Mandal or for group of Taluk or Mandals to
coordinate the activities of legal services in the Taluk and to organise Lok Adalats.
According to the provisions of the Act, to obtain the services offered by this statutory
authority, an application has to be made and the office of the concerned Legal Services
Authority after examining the eligibility of the applicant provide him with a counsel at States
expense, pay the required Court fee in the matter and bear all the expenses incidental to the
case. To provide free and competent legal services to the weaker section of the society was
the basic object of enacting the aforesaid Act.
Justice V. R. Krishna Iyer says, The rule of law underlies our social, economic and
political structure as well as the constitutional order. The Indian way of life will lose its soul
if social justice ceases to be dharma holding us together as nation. And so, it is that we want
legality not to be wet with the tears of poverty. For, surely the law of life will outlaw lawyers
law unless the strategy of bringing law in action into rapport with the norms of justice is put
into the operation and the cost of the legal system is brought into fair accord with the
economic condition of the country. In this humanist perspective, our concern has been to
view welfare inspired legal services programme not as a professional gratuity but as the
judicial arm of Garibi hatao.11

QUALITY OF LEGAL ASSISTANCE OFFERED BY THE STATE:

11 Processual Justice to the People, V. R. Krishna Iyer Chapter 23.
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In India, there are always certain factors that facilitate the access to justice but, what
negates these positive factors are the lack of implementation and infrastructure.
The State, by enacting such a piece of legislation, is supposed to have fulfilled its
Constitutional obligation of providing legal aid to those who are economically and socially
disadvantaged. But, what needs to be analysed is whether such an enactment has fulfilled its
objective and constitutional mandate of promoting equality before law.
The mechanism of justice is engineered by legal technology which becomes quite
difficult to construe without professional expertise. This professional expertise is part of the
legal service which is said to be offered by the provisions of the Constitution and obviously
the Legal Service Authority Act. Arriving at an inclusive definition for legal service is a
problem. However, Section 2 (1) (c) of the said Act attempts to define legal service as a
notion which include the rendering of any service in the conduct of any case or other legal
proceeding before any court or other authority or tribunal and the giving of advice on any
legal matter. The enactment makes it mandatory for the State Legal Aid Authority to provide
for mandatory legal service to those who are denied access to justice on the basis of economic
and other disparities. But, the objective of such a mandatory obligation on the State can be
achieved only when the legal service so offered is competent and of reasonable quality.
Social and economic status in India makes it the responsibility of the legal profession
to voluntarily take up the cases of indigent and socially backward class people. It is the
obligation that a counsel owes towards the society. Pro bono services must essentially be part
of any law firm that is established in this country. However, these obligations that the legal
community is entrusted with are only moral obligations and are not legally binding. In
absence of proper mechanism, these obligations are easily evaded by most of the members of
legal community. Some socially responsible members of the legal elite do take up cases for
the poor and socially disadvantaged but the service they offer suffer from tone of charity.
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Obviously, the whole of the legal community is reprimanded for not taking up the cause of
the socially and economically backward class of people in the society.
While it is just the moral obligation of the legal community to offer pro bono services
for the poor, it is vice versa for the State. Legal aid is not a charity or bounty, but is a
constitutional obligation of the State and right of the citizens12.
In Madhav Hayawadanrao Hoskot Vs. State of Maharashtra13, Justice V. R.
Krishna Iyer opined that Equally affirmative is the implication that while legal services must
be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his
services. Surely, the profession has a public commitment to the people but mere philanthropy
of its members yields short mileage in the long run. Their services, especially when they are
on behalf of the State, must be paid for. Naturally, the State concerned must pay a reasonable
sum that the court may fix when assigning counsel to the prisoner. The advocates who are
engaged by the State Legal Aid Authority must be paid well in order to acquire a quality
professional assistance from them.
There are insurmountable number of people who cluster under the doorstep of the
Justice, whereas, there are only few lawyers who oblige to their moral duty of providing legal
aid to the poor. That is the reason behind enactment of the Legal Service Authority Act which
provides for these legal services at the expense of the State. The question is whether the
professional assistance which is offered by the State is competent enough to win the case for
the indigent if he is not guilty.
Under Regulation 8(9) of NALSA (Free and Competent Legal Services) Regulation,
2010, the amount fixed, payable per month, to Lawyers who are called Retainer Lawyers or
solely engaged to appear for Legal Aid cases, is a mere sum of Rs. 5000 p.m. for District
12Madhav Hayawadanrao Hoskot Vs. State of Maharashtra; AIR1978SC1548

13 AIR1978SC1548
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Legal Services, Rs. 7500 p.m. for State Legal Services, and Rs. 10,000 p.m. for Supreme
Court Legal Services.14 This amount is payable to those lawyers who are exclusively
empanelled for the purposes of Legal Aid Work and due to the over burden of cases have to
deal with those cases solely.
Pragmatic approach to the problem ascertains the fact that these procedural fractures
can be removed or lessened only through practical solutions. The reason behind many
lawyers refraining themselves from forging into the domain of legal service under the nose of
State Legal Authority is lack of proper financial incentives. The remuneration given to those
lawyers who are empanelled in the Legal Aid Cell is very meagre and highly insufficient to
run a life. Any lawyer who is blessed with professional efficiency would not opt to offer his
service exclusively for such meagre fee. Consequently, it can be said that financial
constriction is the main reason why the quality of professional assistance provided by those
engaged as legal aid counsel lags behind and is incompetent. Those who are empanelled as
Legal Aid Counsel lack motivation to strive for the cause of making justice accessible
because of meagre remuneration paid to them. The State should revise the pay package of
those who are engaged as Legal Aid Counsel and then expect them to be competent and
provide quality legal service to the poor and socially disadvantaged.
While those who can engage advocate on their own, i.e. those who can pay exuberant
cost as the fee for the professional assistance provided by the lawyers acquire quality legal
assistance, the indigent who acquire the legal assistance through the mechanism of legal aid
are, in many cases are provided with incompetent lawyers who are no match to those who are
engaged by elites of the society. Thus, the objective of the Article 39A of the Constitution and
the Legal Service Authority Act to bring in equality before law and to promote justice on the
basis of equal opportunity to all, is yet to be achieved because of the improper procedural
14 NALSA(Free and Competent Legal Services) Notification, 2010
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implementation. The task set out for the national wide network of the Legal Aid Authority
of the State is to bridge the gap between the poor and the rich in the process of litigation by
making available competent legal service to the indigent and socially challenged in India.
The Legal Aid Authority in India can seek support from institutions that teaches law
and NGOs. The Law schools should offer institutional support to the Legal Aid Authority of
the State by conducting legal awareness programs and establishing a legal aid clinic in the
campus. For instance, the SASTRA Legal Aid Clinic, School of Law, SASTRA University in
the past academic year has processed more than 500 applications for want of legal aid by
organizing eight legal aid camps in and around Thanjavur. This underlines the need for legal
aid among the poor and it is the moral obligation of the Law Schools to meet the needs of the
community. Such a functioning legal aid clinic should be essential element of every
institution that teaches law in the country. The State should offer support to the Non
Governmental Organizations by providing financial aid to encourage their plight for the cause
of enhancing the accessibility to justice. To inject equal justice into legality, dynamic and
activist scheme of legal service is pre necessity.

IMPEDIMENTS TO ACCESS JUSTICE IN INDIA:

To no one will we sell, to no one will we deny or delay right or justice.15
The process of administration of justice in India involves a long, tiring, technical and
complicated process. Justice delayed is justice denied. The judicial delay has become the
characteristic of the Indian Judicial System. The Justice system which embodies the rule of
law in this country is plagued by back log of cases and lack of infrastructure. Justice should
not only be seemed to be done but justice should be done.

15 Magna Karta; 40th paragraph of the Charter

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Speedy trail is an essential ingredient of 'reasonable, fair and just' procedure

guaranteed by Article 21 and it is the constitutional obligation of the State to devise such a
procedure as would ensure speedy trial to the accused.16 Therefore, speedy administration of
justice has become the Constitutional right within the scope of Article 21 and the State
cannot deny such fair procedure to the citizens of this country on the ground that there are no
adequate financial resources. The National Commission on Review of Working of
Constitution has recommended insertion of Art. 30A that makes right to speedy justice a
fundamental right. This Article should be embedded in the Constitution so that the right to
access courts, tribunals and speedy justice becomes the explicit fundamental right which can
be enforced by the institutions which administer justice.
Currently, the expenditures of High Court and other Sub - ordinate Courts in the State
are borne entirely by the State Government. The Central Government has concurrent
obligation to meet the share the expenditure of the State Government because the Sub
ordinate Courts adjudicate matters that comes under both the State list and the Central list of
Schedule VII of the Constitution. This is the important reason for heavy back log of cases in
the lower courts of the country. There is lack of sub ordinate courts because the entire
burden of establishing these courts and other costs of administration rests with the State
Government. The Working Committee on Constitution recommended that the Finance
commission and the Planning commission shall allocate funds to meet the expenses of State
Judiciary. The Legislature should seriously consider these issues and consider giving effect to
the recommendations of these committees. Administration of Justice is largely affected
because of lack of infrastructure and adequate financial support from the Government. When
administration of justice suffers from such deficiencies, the access to justice is, obviously
hindered.
16 Hussainara Khatoon and Ors. Vs. Home Secretary, State of Bihar, Patna; AIR1979SC1369
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CONCLUSION:
JUSTICE ECONOMIC, SOCIAL AND POLITICAL is the principle enshrined in the
Preamble of the Constitution. Therefore, it is the prime duty cast on the State to facilitate,
promote and ensure that the right to access justice is secured at all levels and that its sanctity
is to be accorded from the very Preamble of the Constitution.
In India, while there are factors that facilitate right to access justice, they are negated
by improper implementation and lack of infrastructure. Access to Justice is indeed provided
by the Constitution in its letter, but, the spirit of it yet to be delivered to all the sections of
Indian society.

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