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Report No. 189

Recommendation of the Commission for Review of the Constitution on right of access to justice

Recently the Commission for Review of the Constitution recommended that 'access to justice' must be incorporated as an express fundamental right as in the South African Constitution of 1996. In the South Africa Constitution, Article 34 reads as follows:

"Art. 34: Access to Courts and Tribunals and speedy justice (1) Every one has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a Court or tribunal or forum or where appropriate, another independent and impartial Court, tribunal or forum.

(2) The right to access to Courts shall be deemed to include right to reasonably speedy and effective justice in all matters before the Courts, tribunals or other forum and the State shall take all reasonable steps to achieve that object."

Accordingly, the National Commission for Review the Working of Constitution has recommended insertion of Article 30A on the following terms:

"30A: Access to Courts and Tribunals and speedy justice (1) Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before an independent court or, where appropriate, another independent and impartial tribunal or forum.

(2) The right to access to Courts shall be deemed to include the right to reasonably speedy and effective justice in all matters before the courts, tribunals or other fora and the State shall take all reasonable steps to achieve the said object."

However, the right to legal aid in India is now firmly entrenched in the Legal Services Authorities Act, 1987. S.12 of that Act provides that legal aid will be available both on the means test as well as the merits test. In fact, for a wide range of litigants with special needs [for instance, persons in custody, children, women, complainants under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, workmen], legal aid is automatically available for filing or defending a case irrespective of the 27economic status of that person.

We have, under the Act, an extensive network of legal aid committees at the taluk, district and State levels. In addition, the Supreme Court and every High Court has its own legal services committee. The task before these committees is to provide effective and quality legal aid, that will not be restricted to legal representation in courts but also counselling and advice, and this is an important and daunting challenge.



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