Access to Justice & Legal Aid

Dr Ranbir Singh

Right to Access to Courts as a component of Access to Justice.

Access to Justice has been often read as being synonymous with Access to Courts. On more than one occasion, the Supreme Court has held that the expression under Article 21 includes the Right to access to courts of law, which is manifested in the form of the Extraordinary Writ Jurisdiction Power bestowed on the two courts. The Constitution recognised importance of access to justice to courts, particularly by resort to the High Courts and the Supreme Court. The right under Article 32 to petition the Supreme Court for enforcement and protection of fundamental rights is itself a fundamental right. In Keshav Singh Re[1], the Indian Supreme Court said “The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the court in that behalf.” Kesavananda Bharti v. State of Kerala[2] recognised judicial review as part of the basic structure of the Constitution, a position that has been reaffirmed by a bench of seven judges in L. Chandra Kumar v. Union of India[3]. That would mean that not even the amendment of the Constitution can take away the power of judicial review vesting in the High Courts and Supreme Court.  Any amendment taking way any part of the right to judicial review will be unconstitutional and can be struck down by the Constitutional Courts.

Right to Free Legal Aid as a component of Access to Justice.

The Right to Free Legal Aid has been adumbrated under Article 39 A of the Constitution of India. However, in exercise of Judicial Activism which started from the causa celebre of Hussainara Khatoon and culminated into the inception of the  National Legal Services Authority vide the Legal Services Authority Act of 1987 was the magnum opus of Judicial sympathy towards the plight of the masses. Prior to the inception of this Act, Justice was a subject which existed in text books. Anybody who was well to do can pay and have himself represented. A poor, on the other hand would have to sell of the last dime that he saved in order to fight for his right, a right which was so sanctum to his very identity, that he was forced to bow down before the might of those who subverted and exploited the law to their own prejudice.

By providing for access to Justice to the poor and the marginalized, the setting up of The National Legal Services Authority under the aegis of Supreme Court Justices both former and present, has earmarked an era wherein and whereby Justice is delivered to People at their very own doorsteps.

Furthermore, the effect that the setting up of National, State and District Legal Services Committee has had on people, has been immense. The skeletal provisions enunciated in the Criminal Procedure Code and the Code of Civil Procedure was revived by flesh and blood as soon as the Seventies witnessed a great upsurge in the number of cases filed by the destitute, the poor, the impoverished and the seemingly grotesque under dogs of the society. It was a combination of the Legislative Will, the Judicial Activism and the Executive Commitment which forged an alliance to become the World’s largest free legal Aid Service Provider.

Such a gigantic institutional change was not only specific to infrastructural changes, but was also contemplative of the stance taken by the Supreme Court in taking stringent steps to ensure that Justice is actually done, and not merely be seem to be done. Statistics from the National Crime Records Bureau suggest an alarming number of almost 85% of the total prisoners to be under trials that have been incarcerated and are waiting for their fate to unfold on them. Casus Classicus such as Rudul Shah or Sunil Batra v. Delhi Administration brought in revolutionary changes in the manner in which under trial prisoners were to be kept. The guidelines that were formulated by the Apex Court were in accordance with the International Treaties and other covenants on the right to the protection of Right and Dignity of the Under Trials and the Prisoners.

Furthermore, the Supreme Court by virtue of its Herculean power of Interpretation paved way for those who have been subjected to deplorable treatment by giving them a sigh of relief. It was held in the Causa Celebre of Delhi Development Working Womens Forum v. Union of India wherein the Supreme Court provided for the setting up of a Criminal Injuries Compensation Board (C.I.C.B.) so as to ensure that the four tribal ladies who were raped were compensated for the loss to their dignity. Furthermore, it was in this very case that the Supreme Court took a proactive stance and impleaded the National Commission of Women thereby castigating of their laxity in not taking up the matter before themselves, and holding that the NCW was not merely a recommending body, but had the power to enforce its recommendations.

It was according to such momentous decisions that people’s faith in the Legal System is still intact. 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 SC/ ST Act, workmen, legal aid is automatically available for filing or defending a case irrespective of the economic 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, every High Court and the Supreme Court has its own legal services committee. The task before these committees to provide effective and quality legal aid, that will not be restricted to legal representation in courts but also counseling an advice, is an important and daunting challenge.

[1] AIR 1965 SC 745.

[2] 1973 (4) SCC 225.

[3] (1997) 3 SCC 261.

 

Author: Prof. (Dr.) Ranbir Singh, Vice-Chancellor, National Law University of Delhi.

New Delhi, India