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Report No. 189

Constitutional Provisions

We may now refer to a few provisions of the Constitution to underscore the importance given to the obligation of the state to provide access to justice.

The Preamble as well as Article 38 of the Constitution of India mandate that the State shall secure and protect as effectively as it may, a social order in which justice (social, economic and political) shall be available to its citizens. For the purpose of translating this promise into reality, Article 39A was introduced in the Constitution in the year 1976 by way of 42nd Amendment to the Constitution. It reads as follows:

"39A - Equal Justice and Free Legal Aid The State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."

It has been held by the Calcutta High Court in United Bank of India v Rashyan Udyog, AIR 1990 Cal. 146, that the principle enshrined in Article 38 and 39A, like all other directive principles in Part IV of the Constitution are fundamental in the governance of the country, and that these principles (Art. 38 and 39A) must also to be taken to be fundamental to the administration of justice. Article 8 of the Universal Declaration of Human Rights, 1948 provides that:

"Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights guaranteed him by the Constitution or by law."

Similarly, clause (3) of Article 2 of International Covenant on Civil and Political Rights, 1966 provides that each State party to the covenant undertakes 'to ensure that every person whose rights or freedom as recognized violated, shall have an effective remedy' and 'to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, and the State should also ensure to develop the possibilities of judicial remedies".

The upshot of the above discussion is that it is one of the fundamental obligations of the State to provide effective fora for better administration of justice. Where access to justice is made to depend on the price that a litigant is willing to pay, it would, given the realities of our country, tantamount to denial of access to justice. The state cannot possibly disown its constitutional obligation to provide easy and affordable access to justice on the pretext of non-availability of requisite finance.

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