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Report No. 213

3. Easy Access to Justice

3.1 Hon'ble Dr. Justice AR. Lakshmanan, Chairman of the Law Commission of India, has very beautifully explained the subject in his book 'Voice of Justice'. Some of the relevant paragraphs are reproduced as under:

"The Constitution of India guarantees to all its citizens right to life and personal liberty, right to equality, right to freedom etc. Apart from these public rights, there are various private rights arising from torts and contracts and also the various social welfare legislations such as Contract Labour (Regulation and Abolition) Act, 1976, Equal Remuneration Act, Minimum Wages Act and so on. But these rights are of no avail if an individual has no means to get them enforced. Rule of law envisages that all men are equal before law. All have equal rights but unfortunately all cannot enjoy the rights equally. The enforcement of the rights has to be through the courts, but judicial procedure is very complex, costly and dilatory putting the poor persons at a distance.

The Constitution of India through Article 14 guarantees equality before law and equal protection of laws. It follows from this that equal opportunity must also be afforded for access to justice. It is not sufficient that law treats all persons equally, irrespective of the prevalent inequalities. But law must function in such a way that all the people have access to justice in spite of the economic disparities. The words 'access to justice' focus on two basic purposes of the legal system.

1. the system must be equally accessible to all

2. it must lead to results that are individually and socially just.

Traditional concept of "access to justice" as understood by common man is access to courts of law. For a common man, a court is the place where justice is meted out. But the courts have become inaccessible due to various barriers such as poverty, social and political backwardness, illiteracy and ignorance etc.

To get justice through courts, one must go through the complex and costly procedures of litigation. One has to bear the costs of litigation including court fee, stamp duties etc. and also the lawyers' fees. Apart from these, the litigant loses much more in financial terms such as loss of income arising from attending the court hearings. A poor litigant who is barely able to feed himself will never be able to get justice or obtain redress for a wrong done to him through courts. Further, a large part of the population in India is illiterate and live in abject poverty.

Therefore, they are totally ignorant about the court procedures and will be terrified and confused when faced with the judicial machinery. Thus most of the citizens of India are not in a position to enforce their rights, constitutional or legal, which in effect generates inequality contrary to the guarantees of Part III of the constitution. Large population, more litigation and lack of adequate infrastructure are the major factors that hamper our justice system. Regular adjudication procedures through the constant efforts of Legal Services Authorities will act as catalysts in curing these maladies of our system.

Time has come to think of providing a forum for the poor and needy people who approached the law courts to redress their grievance speedily. However, the delay in disposal of cases in law court, for whatever reason it may be, has really defeated the purpose for which the people approach the courts for their redressal. Justice delayed is justice denied and at the same time justice hurried is justice buried. So, one has to find out a via media between these two to render social justice to the poor and needy who want to seek their grievance redressed through Law Courts.

The Constitutional promise of securing to all its citizens justice - social, economic and political as promised in the Preamble of the Constitution cannot be realised unless the three organs of the State i.e. legislature, executive and judiciary join together to find ways and means for providing to the Indian poor equal access to its justice system.

The judiciary has tried to do this through Public Interest Litigation movement, but this movement has now lost much of its momentum. The executive is balking at enforcing the courts' orders in Public Interest Litigation cases. The persons undertaking PIL cases are misusing the opportunity provided or they are not able to fully utilise the opportunity.

infrastructure for the Fast Track Courts is to be provided by the ad hoc State Government and the selection of the Judges is to be made by the ad hoc High Court. The scheme includes construction of new court rooms, ad hoc appointment of ad hoc judges, Public Prosecutors and supporting staff ad hoc and arrangement for quick processors. It would be appropriate to ad hoc have, our in-service Judicial Officers to be appointed in these Courts, ad hoc after giving them promotions on purely temporary ad hoc basis ad hoc initially for two years, extendable by another two years or till they are ad hoc promoted on regular basis.

These appointments shall be made as far as ad hoc possible in Fast Track Courts. Their future regular promotion shall ad hoc depend on their performance in these Courts. Those Officers who are ad hoc not found fit to travel on fast track, shall be off-loaded and sent back ad hoc to their regular cadre. It is a joint venture of the Central Government, ad hoc State Government and the High Court to tackle the problem on war ad hoc footing.

It is needless to say that realization of real justice needs cooperation of all the three wings of the Government with one single ad hoc aim to reach out justice to individuals and thus, maintain rule of law. ad hoc Interaction between the three wings of the Government is necessary to ad hoc improve the justice delivery system and such co-operation should be ad hoc seen in day-to-day dispensation of justice.

Sessions trials in several ad hoc Courts in the country are held up because of unwanted adjournments ad hoc on just asking either by the defence counsel or Public Prosecutor, not ad hoc examining the witnesses within the scheduled time and the non-cooperation of the prosecuting agency. There is a general complaint that ad hoc the Police has no sufficient time or force, to serve in time the ad hoc summons on the witnesses and keep the undertrial prisoners present in ad hoc the Court, at the time of trial.

There are instances coming to light that ad hoc the offenders are sentenced but sentences imposed, are not executed ad hoc because the convicts had already jumped bail and the police has no ad hoc will and time to search them out.

It is not uncommon for any criminal case to drag on for years. During ad hoc this time, the accused travels from the zone of "anguish" to zone of ad hoc "sympathy". The witnesses are either won over by muscle or money ad hoc power or they become sympathetic to the accused. As a result, they ad hoc turn hostile and prosecution fails. In some cases, the recollection ad hoc becomes fade or the witnesses die. Thus, long delay in courts causes ad hoc great hardship not only to the accused but even to the victim and the ad hoc State.

The accused, who is not let out on bail, may remain in jail for ad hoc number of months or even years awaiting conclusion of the trial. ad hoc Thus, effort is required to be made to improve the management of the ad hoc prosecution in order to increase the certainty of conviction and ad hoc punishment for most serious offenders. It is experienced that there is ad hoc increasing laxity in the court work by the police personnel, ad hoc empowered to investigate the case.

Judiciary today is more deserving of public confidence than ever ad hoc before. The judiciary has a special role to play in the task of achieving ad hoc socio-economic goals enshrined in the Constitution while maintaining ad hoc their aloofness and independence; the Judges have to be aware of the ad hoc social changes in the task of achieving socio-economic justice for the ad hoc people.

The Indian Judicial system is constantly exposed to new challenges, ad hoc new dimensions and new signals and has to survive in a world in ad hoc which perhaps the only real certainty is that the circumstances of ad hoc tomorrow will not be the same as those of today. The need of the hour is to correct misconception about the Judiciary ad hoc by making it more accessible and more explicit, by utilizing the ad hoc resources available to improve the service to the public, by reducing ad hoc delays and making courts more efficient and less daunting."1

1. Dr. Justice AR. Lakshmanan, Voice of Justice, Universal Law Publishing Co. Pvt,. Ltd., Delhi, (2006), pp. 23-233, 236, 239, 245-247, 250.

3.2 At the National Seminar on 'Delay in Administration of Criminal ad hoc Justice System' held at New Delhi on 17 March, 2007, Hon'ble Mr. Justice ad hoc K. G. Balakrishnan, Chief Justice of India, in his Presidential Address ad hoc observed:

"The criminal justice system in the country is designed to protect the ad hoc citizens of this country from the onslaught of criminal activities of a ad hoc section of the community which indulges in such acts. The outcome ad hoc of any criminal justice system must be to inspire confidence and ad hoc create an attitude of respect for the rule of law. An efficient criminal ad hoc justice system is one of the cornerstones of good governance. When ad hoc we think of criminal justice system it consists of the police, ad hoc prosecuting agency, various courts, the jail and the host of other ad hoc institutions connected with the system.

The State as a guardian of ad hoc fundamental rights of its citizens is duty-bound to ensure speedy trial ad hoc 26 Dr. Justice AR. Lakshmanan, Voice of Justice, Universal Law Publishing Co. Pvt. Ltd., ad hoc Delhi, (2006), pages 231-233, 236, 239, 245-247, 250. ad hoc and avoid excessively long delays in trial of criminal cases that could ad hoc result in grave miscarriage of justice. It is in the interest of all ad hoc concerned that the guilt or innocence of the accused is determined as ad hoc quickly as possible. But, unfortunately, there are a large number of ad hoc cases pending in various courts.

Various factors contribute to large ad hoc pendency of criminal cases in the subordinate courts. Speedy trial of ad hoc criminal cases should be recognized as an urgent need of the present ad hoc judicial system in order to decide the fate of lakhs of litigants. It will ad hoc help enhance the faith of general public in the present judicial system. ad hoc In order to have a strong socio-economic system, it is important that ad hoc each and every state of trial of an accused should move at reasonably ad hoc fast pace. Speedy trial ensures that a society is free of such ad hoc vices.

The new system of plea bargaining incorporated in the ad hoc Criminal Procedure Code shall be available to the under-trial ad hoc prisoners and the court and the prosecuting agency and the lawyers ad hoc should make them aware of the benefits of the benevolent provision ad hoc incorporated in our statute.

The challenges before the criminal justice system are to balance the ad hoc rights of the accused while dispensing speedy and effective justice. ad hoc The criminal justice system machinery must also meet the challenge ad hoc of effectively dealing with the emerging forms of crime and behaviour ad hoc of the criminals.

On many occasions, delay in the process of trial is caused by the ad hoc accused themselves. The accused know that any delay in trial would ad hoc only help him as the memory of the witnesses is likely to be blurred ad hoc by the passage of time....

In the trial of criminal cases a Judge should be a little more active and ad hoc he can contribute to a great extent in preventing the delay in the ad hoc administration of justice. On many occasions the Sessions Judges ad hoc adjourn the cases for long period and the delay is thus caused and ad hoc many witnesses who would have supported the prosecution case lose ad hoc interest in the case and often forget the ethical duty cast on them.

In most of the cases, the blame for delay in administration of criminal ad hoc justice system is put at the door of the courts. Courts are over ad hoc congested with petty cases and many legislations are being enacted ad hoc which result in filing of large number of cases before the courts. ad hoc Inclusion of additional forms of crime, for example, Section 138 cases ad hoc under the Negotiable Instruments Act or Section 498A in the Indian ad hoc Penal Code, contributed a large number of cases in the criminal ad hoc courts.

Some of the new legislations like, Domestic Violence ad hoc (Prevention) Act, have come up which contribute some more cases to ad hoc the criminal courts. To deal with these types of cases we do not have ad hoc additional number of courts, we do not have additional infrastructure. ad hoc In many States sufficient budgetary provisions are not made for ad hoc improving the infrastructure of the subordinate courts, including ad hoc additional improvement of existing courts, court complexes.

We require modernization and computerization of our criminal justice ad hoc system. In many States courts are functioning from rented places. The ad hoc building which was constructed for the purpose of residence is being ad hoc used to house courts. There should be sufficient sitting arrangement ad hoc for the witnesses or the clients. There should be suitable building for ad hoc the proper functioning of the courts. The prosecuting agency should ad hoc be given sufficient facilities for the court to conduct the cases.

The ad hoc accused and the witnesses should have resting rooms if the trial has ad hoc become lengthy. All this could be provided only if there are courts ad hoc with modern facilities. The States should gradually improve the ad hoc infrastructure and there must be sufficient budgetary allocation in ad hoc each year. Now the courts are provided only with budgetary allocation ad hoc for the payment of salaries of staff members of the courts and for dayto-day expenses for running the courts.

This situation could be ad hoc changed, if sufficient funds are allocated every year for starting new ad hoc courts and also to improve the conditions of the existing courts. The ad hoc starting of Fast Track Courts have helped to a great extent in ad hoc disposing of the pending Sessions cases and that, by itself, has proved ad hoc that it is because of lack of large number of courts that the pendency ad hoc of criminal cases is on the rise."1

1. Presidential address by Hon'ble Mr. Justice K.G. Balalkrishan, CJI, at National Seminar on Delay in ADminstration fo Criminal Justice System, 17.03.2007, Vigyan Bhavan, New Delhi [ speeches-2007].

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