Report No. 127
Courts: The Changing Role
2.1. "The concept of justice permeates society. It is a principle that governs the relationship within an individual family, and must equally govern relationships within the family of nations."1 "Justice is the hallmark of courts. View of justice differ, however, courts function in a wider justice system which spans the range from police through corrections, and, in the civil sphere may touch all citizens. The courts are the fulcrum of this system. Despite their serious imperfections, it is frightening to contemplate a nation without courts, a complex society without a formal institution to enforce the rules set forth by that society."2 It is, therefore, necessary to strengthen the system.
A reform movement is in process to modernise court structure and administration and to achieve court-related objectives around which some consensus has developed amongst various interest groups directly or indirectly connected with court system, such as Judges, lawyers, legal academes, litigants and even the Government. "There is no better test of the excellence of a Government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizens than the feeling that he can rely on certain and prompt administration of justice."3 Judicial power is the power of the State.
The State has to create institutions on which the judicial power of the State can be conferred and the citizens in search of justice may approach these institutions. In determining a nation's rank in political civilization, no test is more decisive than the degree in which justice, as defined by the law, is actually realised in its judicial administration as between one private citizen and another and as between private citizens and members of the Government."4
1. H. Ted Rubin The Courts: Fulcrum of the Justice System,
3. Quoted in O.P. Motiwal Changing Aspects of Law and Justice, 9.
4. Id., p. 10.
2.2. The expression "access to justice" has different connotations. The road blocks in the access to justice can be high cost, geographical distance, adverse cost benefit ratio and the inordinate delay in search of illusory justice. The State is responsible to remove all road blocks in the access to justice. Accordingly, the State should ensure that the system is equally accessible to all and should lead to the results that are individually and socially just.
2.3. The concept of access to justice has undergone an important transformation. Earlier right to access to judicial protection meant the aggrieved individual's formal right to litigate or defend a claim. It did not require State action for their protection. Their preservation required only that the State did not allow them to be injured by other. Relieving 'legal poverty', that is, incapacity of many to make full use of the law and institutions was not the concern of the State.1
1. M. Capelletti Access to Justice, 6-7 (Book 1).
2.4. Article 39A casts a positive duty on the State to so structure the legal judicial system as to ensure that the operation promotes justice, on a basis of equal opportunity. To attain this object, the State had to pass suitable legislation or frame schemes to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Amongst other disabilities, courts situated at a long distance from the habitat of the citizens in search of justice itself would have a dampening effect on one's search of justice.
This disability can be removed by betting up courts within the easy reach of the litigants and, if need be, by providing legal aid so that the highly expensive system may not thwart the urge to seek justice. "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 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?"1
1. Prof. Vance of yale, as quoted in M.H. Hosket v. State of Maharashtra, (1978) 3 SCC 544 (553).
2.5. Therefore, consider the question where, apart from paying the fees for admission, one has to travel long distance accompanied by the witnesses in search of a place for justice. In our country, the courts are situated in places which are inaccessible in monsoon except walking the whole disIance. Which witness would be so justice-oriented that in the vindication of truth he would accompany the litigant walking all the way to the court and in the process leave his own work unattended? For poor people inhabiting the rural landscape, giving up one's work means totally denying oneself even a morsel of food.
2.6. Now it is true that recently the apex court has opened its doors to those impoverished sections of the society who complain of violation of fundamental rights. Let it, however, not be forgotten that a large volume of litigation emanating from rural areas arises from the enforcement of Statutes for which redress has to be sought from grass-root level courts. While opening its doors to the people in custody, victim of police violence, workers, pavement dwellers, etc., the limitation on the entry in the court has to be kept in view in that one has to complain of violation of fundamental rights inviting the Supreme Court to adjudicate upon the issue.
But what happens to those impoverished sections of the society to whom minimum wages are not paid, who suffer because of bureaucratic indifference, who amongst themselves have disputes concerning property, right of way, possession of land or dwelling house, et al? They have to approach the court at the grass-root level and these courts are still not exposed to newly developing culture of ignoring the problem of locus standi and rendering justice without being inhibited by a procedure devised in colonial times. "Throughout the seventies, the Executive made its wish public that the Judges and courts should be committed to the Constitution and the promise of progress and justice within it.
Now, led by the Supreme Court of India, Judges and courts have shown their commitment to the rural poor and to the unfortunate underprivileged. But that can bring in a limited relief. Undoubtedly, the social activists have learnt the uses of law as an aspect of overall struggle on behalf of the dominated and vulnerable just as Judges and courts began to take the Indian suffering seriously.1 A major percentage of litigation hardly involves infraction of fundamental rights. This litigation emanates from rural areas. To them, no relief can be extended in their petty disputes involving long drawn out litigation in distant courts by either the epistolary jurisdiction or social action litigation.
To them, the easy accessibility of the court without wasting a whole day denying daily earning, would be service of immense value. It is here that neighbourhood justice will relieve the agony of a large number of litigants. Social action litigation undoubtedly has its own place in the scheme of things. There is greater recourse to the courts to solve problems whereas in the past they have not been resolved judicially. Sometimes the Executive or the Legislature find it more convenient to pass on to the courts the difficult or politically embarrassing questions, though covertly, for example, Muslim Women's (Rights on Divorce) Act, 1986.
In this approach, the courts undergo a transformation into 'the problem solvers of the society'. But, as pointed out hereinabove, this expanded jurisdiction leaves the underprivileged having petty disputes about their day-to-day problems cold and unimpressed. For them, the easy accessibility means the court providing neighbourhood justice. Some attempt has been made in this direction by the present Law Commission in recommending the setting up of Gram Nyayalaya, a participatory model of justice.2
1. U. Baxi Justice and Judicial Intervention.
2. LCI, 114th Report on Gram Nyayalaya.
2.7. In constantly interpreting and reinterpreting the Constitution to arrive at the desired socialistic goals, legislations and their subordinate breed are bound to proliferate and, as a result, varying interests would converge or clash. A constant resolution of disputes arising from contrary expectations sought through the same legislations inevitably increases the role of courts.
2.8. Outlay on all sections of activity is increasing. In every such activity, the area of potential conflict related to right-duty syndrome exists. Once such conflict becomes apparent, search for justice is inevitable and the search leads to higher expectations of justice. Naturally in a constitutional democracy, this is indispensable because it is founded on the doctrine of rule of law. All this combined to create need for more courts and more courts means more outlay on justice system.
2.9. There is a happy augury that our courts in India are no longer importing thoughts but indulgencing them which obviously demands greater facilities for greater number.
2.10. Indisputably, the courts' functions have multiplied manifold. The phenomenon is not limited to the Supreme Court only but to courts at all levels. There is an increasing demand for a statutory provision requiring the grass-root level courts also to entertain social action litigation without the necessity of establishing violation of fundamental rights but pointing out injured interest of a group unable to obtain relief because of their social and educational backwardness. This is taken note of when the Law Commission, in restructuring grass-root courts, has recommended for a liaison officer with a right of locus standi.1
1. LCI, 114th Report on Gram Nyayalya, Chapter VI, para. 6.20.