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Report No. 222

Need for Justice-dispensation through ADR etc.

I. Propositions

1.1 One of the terms of reference of the 18th Law Commission of India reads:

"To keep under review the system of judicial administration to ensure that it is responsive to the reasonable demands of the time and in particular to secure:-

(i) Elimination of delays, speedy clearance of arrears and reduction in costs so as to secure quick and economical disposal of cases without affecting the cardinal principle that decision should be just and fair.

(ii) Simplification of procedure to reduce and eliminate technicalities and devices for delay so that it operates not as an end in itself but as a means of achieving justice.

(iii) Improvement of standards of all concerned with the administration of justice."

1.2 The present Report is in the continuum of the Law Commission's various earlier reports on the subject of judicial administration.

1.3 Man is not made for law, but the law is for man. Law is a regulator of human conduct. No law works smoothly unless the interaction between the two is voluntary. An act is justified by law, only if it is warranted, validated and made blameless by law.

1.4 The Indian Constitution guarantees justice to all. All Indian citizens are guaranteed equal rights of life and personal liberty, besides many other fundamental rights. There are various other legal rights conferred by different social welfare legislations, such as, Contract Labour (Regulation and Abolition) Act 1970, Equal Remuneration Act 1976, Minimum Wages Act 1948. 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. Enforcement of the rights has to be through courts, but the judicial procedure is very complex, costly and dilatory putting the poor persons at a distance.

1.5 The Constitution of India through article 14 guarantees equality before the law and the equal protection of the laws. Article 39A of the Constitution mandates the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and ensure that the same is not denied to any citizen by reason of economic or other disabilities.

Equal opportunity must be afforded for access to justice. It is not sufficient that the law treats all persons equally, irrespective of the prevalent inequalities. But the law must function in such a way that all the people have access to justice in spite of economic disparities. The expression "access to justice" focuses on the following 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.

1.6 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 to him/her. But the courts have become inaccessible due to various barriers such as poverty, social and political backwardness, illiteracy, ignorance, procedural formalities and the like.

1.7 To get justice through courts one has to go through the complex and costly procedures involved in litigation. One has to bear the costs of litigation, including court fee and, of course, the lawyer's fee. A poor litigant who is barely able to feed himself will not be able to afford justice or obtain legal redressal 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, are 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.

1.8 It is one of the most important duties of a welfare state to provide judicial and non-judicial dispute-resolution mechanisms to which all citizens have equal access for resolution of their disputes and enforcement of their fundamental and legal rights. Poverty, ignorance or social inequalities should not become barriers to it. The Maneka Gandhi1 principle, as enunciated by the Indian Supreme Court, that fundamental rights do not constitute separate islands unto themselves but constitute a continent ushered in what krishan Iyar, J. terms the jurisprudence of acces to justice. He said:

"We should expand the jurisprudence of Access to Justice as an integral part of Social Justice and examine the constitutionalism of court-fee levy as a facet of human rights highlighted in our Nation's Constitution. If the State itself should travesty this basic principle, in the teeth of Articles 14 and 39A, where an indigent widow is involved, a second look at its policy is overdue. The Court must give the benefit of doubt against levy of a price to enter the temple of justice until one day the whole issue of the validity of profit-making through sale of civil justice, disguised as court-fee is fully reviewed by this Court".2

1. (1978) 1 SCC 248.

2. State of Haryana v. Darshana Devi, AIR 1979 SC 855

1.9 Article 39A, as noted above, provides for equal justice and free legal aid. The said article obligates the State to in particular provide free legal aid, by suitable legislation or schemes or in any other way, to promote justice on the basis of equal opportunity. Article 39A puts stress upon legal justice. The directive requires the State to provide free legal aid to deserving people so that justice is not denied to anyone merely because of economic disability.

The Supreme Court in Sheela Barse v. State of Maharashtra, AIR 1983 SC 378 , has emphasized that legal assistance to a poor or indigent accused arrested and put in jeopardy of his life or personal liberty is a constitutional imperative mandated not only by article 39A but also by articles 14 and 21 of the Constitution. In the absence of legal assistance, injustice may result. Every act of injustice corrodes the foundation of democracy and rule of law. Article 39A makes it clear that the social objective of equal justice and free legal aid has to be implemented by suitable legislation or by formulating schemes for free legal aid.

1.10 Though Article 39A was introduced in the Constitution in 1976, its objective of providing access to justice could never have been fulfilled but for the majestic role played by the Supreme Court in 'Public Interest Litigation Movement'. This is a movement whereby any public-spirited person can move the Court for remedying any wrong affecting the public. This is a significant step by the Supreme Court in giving access to justice to the people belonging to the lowest strata of society.

Further, it was only through cases filed in public interest that the Supreme Court was able to encourage legal aid service to poor and indigent persons. Through public interest litigation the courts are able to deal with poor people suffering from injustice and exploitation, such as, bonded labour, dalits, women, children, physically challenged, mentally challenged and so on.



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