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Report No. 272

Chapter - IX

Exclusion of Jurisdiction of all Courts by an Alternative Mechanism and Access to Justice

9.1 Access to justice in our Constitution is placed on a higher pedestal of fundamental rights. Access to Justice is synonymous with Access to Courts. It is inbuilt under Article 14 of the Constitution which guarantees equality before law and equal protection of laws.170 With a view to increase the access to justice for an individual at grassroots level, Tribunals have emerged to adjudicate in a time bound manner.171 The right to justice is an integral and inherent part of the basic structure of the Constitution. According to Cappelletti, "Effective access to justice can thus be seen as the most basic requirement - the most basic human right of a system purports to guarantee legal rights."172

170 Justice A.K. Ganguly's speech on Access to Justice on the eve of Golden Jubilee of ILI (1956-2006).

171 Krishnan, Jayanth K., Kavadi, Shirish N. & Others, "Grappling at the Grassroots: Access to Justice in India's Lower Tier" 27 HHRJ 156 (2014).

172 M. Cappelletti, Access to Justice 672 (1976).

9.2 While interpreting the provisions of section 340(1) of the Code of Criminal Procedure, 1898, the Supreme Court, in Tara Singh v. State of Punjab, AIR 1951 SC 441 and Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217 recognized the right of the accused to have legal aid but did not record that the trial stood vitiated for want of the same, in the facts of those cases. In Bashira v. State of UP, AIR 1968 SC 1313 the Supreme Court held that conviction of the accused under section 302 of the Indian Penal Code, 1860, for murder was void on the ground that the sufficient time was not granted to the amicus curiae to prepare the defence.

9.3 It was in view of the above judgments that section 304 was added in the Code of Criminal Procedure, 1973. The Supreme Court in subsequent cases has consistently held that non availability of counsel to the accused or counsels' ineffectiveness in conducting a trial may in a particular case amount to denial of right of access to justice. In view of the provisions of section 304 Cr. PC and Article 22(1) of the Constitution, the legal aid must be provided in a substantial and meaningful manner.176 The law requires the Court to inform the accused of his right to obtain free legal aid.

176 Madhav Hayawadanrao Hoskot v. State of Maharashtra, AIR 1978 SC 1548; Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1369; Mohd Hussain @ Julfikar Ali v. The State (Government of NCT) Delhi, (2012) 9 SCC 408; and Ashok Debbarama @ Achak Debbarama v. State of Tripura, (2014) 4 SCC 747.

9.4 By Constitution (Forty-Second Amendment) Act, 1976, Article 39-A was introduced as a part of "Directive Principles of State Policy", and as a consequence the Legal Services Authority Act, 1987 was enacted to ensure that opportunities for securing justice are not denied to any citizen by reason of any disability on his part. The right to Access to Justice flows from Articles 21 and 22(1) of the Constitution.177

177 Rajoo @ Ramakant v. State of Madhya Pradesh, (2012) 8 SCC 553; and Mohd. Kasab @ Aboo Mujahid v. State of Maharashtra, (2012) 9 SCC 1.

9.5 The actual meaning of Access to Justice on the ground level is succinctly described in a Report on 'Access to Justice 2016' the relevant part of which provides that, "Access to justice is meaningful when each citizen has a ready access to court and this will be possible only if the number of courts is increased. As a starting point it is necessary that a court of first instance is available to each citizen within a radius of 50 kilometres from his residence or within a maximum traveling time of half a day." 178Access to justice should not be understood to be, reaching out in geographical terms only. In Bhavabhai Bhadabhai Maru v. Dhandhuka Nagar Panchayat, (1991) 2 GLR 1339 the Court held that effective access to judicial process is a dynamic realism of the Rule of Law, observing:

178 Report on Subordinate Courts of India: A Report on access to justice 2016, available at:

http://ecourts.gov.in/sites/default/files/A%20Report%20on%20access%20to%20justice%202016.pdf (last visited on 14-08-2017).

"Access to justice, Civil Criminal and other, must be democratised, humanised and the doors of all be kept ajar for the citizenry, without the janitors of legal justice blocking the way and hampering the entry, initially and at higher levels, using various constraints."

9.6 The Supreme Court has consistently held that access to justice is not only a fundamental right but it is as well a human right and a valuable right. 180 The Constitutional remedies are always available to a litigant even if no other remedy is provided under the Statute as it would violate the philosophy enshrined in legal maxim 'ubi jus ibi remedium'(wherever there is a right, there is a remedy) meaning thereby, a person cannot be rendered remedy less.181

180 Tamil Nadu Merchantile Shareholders Welfare Association v. S. C. Sekar, (2009) 2 SCC 784; and Life Insurance Corporation of India v. R Suresh, (2008) 11 SCC 319.

181 Raemshwar Lal v. Municipal Council Tonk, (1996) 6 SCC 100; and Laxmi Devi v. State of Bihar, AIR 2015 SC 2710.

9.7 The Access to justice has been recognised as a human right under Articles 8 and 10 of the Universal Declaration on Human Rights, 1948. The relevant provisions reads as under:

'Article 8: "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.

Article 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.'

9.8 The International Covenant on Civil and Political Rights, 1966 provides in Article 2(3) as under:

'Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.'

9.9 In Anita Kushwaha v. Pushap Sudan, AIR 2016 SC 3506 the Court declared, 'Access to Justice' is implicit in Articles 14 and 21, observing:

'Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilized societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens the development of fundamental principles of common law by judicial pronouncements of the Courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilized societies and systems recognise and enforce.'

9.10 Emphasising on access to justice, the Supreme Court in Hussainara Khatoon v. Home Secretary, State Of Bihar, AIR 1979 SC 1369 held that free legal aid to a person suffering from economic and social disabilities is an essential prerequisite of fair, reasonable and just procedure under Article 21. In Municipal Council Ratlam v. Vardhichand, (1980) 4 SCC 162 the Court held:

'Social justice is due to the people and, therefore, the people must be able to trigger off the jurisdiction vested for their benefit in any public functionary like a Magistrate under Section 133 Cr.P.C. In the exercise of such power, the judiciary must be informed by the broader principle of access to justice necessitated by the conditions of developing countries and obligated by Article 38 of the Constitution. This brings Indian public law, in its processual branch, in line with the statement of Prof. Kojima: "the urgent need is to focus on the ordinary man-one might say the little man" 'Access to Justice' by Cappelletti and B. Garth summarises the new change thus:

The recognition of this urgent need reflects a fundamental change in the concept of "procedural justice"The new attitude to procedural justice reflects what Professor Adolf Hamburger has called "a radical change in the hierarchy of values served by civil procedure"; the paramount concern is increasingly with "social justice," i.e., with finding procedures which are conducive to the pursuit and protection of the rights of ordinary people. While the implications of this change are dramatic-for instance, insofar as the role of the adjudicator is concerned-it is worth emphasizing at the outset that the core values of the more traditional procedural justice must be retained. "Access to justice" must encompass both forms of procedural justice.'



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