‘Access to Justice’ is a basic human right conferred by the common law and exists unless it is taken away under any valid exercise of statutory or constitutional power by the legislature.
In England, during the reign of Henry II, in the Twelfth Century, the concepts of ‘access to justice’ and ‘rule of law’ took roots when the King agreed for establishing a system of writs that would enable litigants of all classes to avail themselves of the King’s justice. But soon, the abuses of ‘King’s Justice’ by King John, prompted the rebellion in 1215 that led to the Magna Carta which became the initial source of British constitutionalism. What it represented then and now is a social commitment to the Rule of Law and a promise that even the King is not above the law.
The word “access” in itself signifies a Right to move towards Remedy. This is not a modern concept but is by and large reflective of the primeval principle of Roman law “ubi jus ibi remedium” i.e. where there is a Right, there is a Remedy. Access then is the exercise of this Right to get ones due. Another word, which then is supplanted to the word Access, is “Justice” which can at best be surmised as a phenomenon which no one has seen, but everyone has felt the presence, or the lack of it. Jurists have propounded theories, castigated and rebutted each other’s dictums, but have not yet been able to arrive at the consensus of what exactly are the contours of the word “Justice”.
However, a common understanding of this word is read as being synonymous with Right. Whatever is Right is just, and vice versa. A king has to be righteous, for if he discharges his duties to the best of his abilities, then he is just. As a corollary, a person who is unlawful, and has no regard for civilized conduct is unjust. His actions are unjustified and he will have to account for all the wrong that he has done to people. This psychological expectation from the State is embedded within each denizen to punish every person who is at the wrong pedestal, and to bring him to Justice, is what they are indoctrinated into. To them, the State is the supreme custodian of their rights, and whenever the sanctity of this right is threatened, it is the duty of the state to intervene and restore normalcy. It is entirely in this light that the theory of justice found its origin.
However, the modern conception of Justice is not the one that was propounded by the Natural Law School theorists, nor was it crystallized from the aphorisms of the Positivists, but the modern notion was a milieu of sociological jurisprudence with a tinge of critical legal thought. With specific reference to India, this means that access to justice was not about bringing the culprits to the books, but it extended far beyond by imposing a positive duty onto the State to restore it all that was its due.
The builder of Modern India, Jawaharlal Nehru was a crusader, when it came to the inclusion of the Fundamental Rights which were embodied from the American Constitution. Furthermore, it was not sufficient that the individual’s rights have been assorted into Part III of the Constitution, there very enforceability was endowed into the hands of the Apex Tribunals of the country as the guardian Templars of the Holy Cross which was manifested in the form of Article 32 and 226 of the Constitution. It was however found insufficient, and therefore a categorical observation was made that in order to live up to the expectations of the citizens of this country, it was quintessential that the role of the State was to find its guidance from the very Constitution. It was in this light that the Directive Principles of State Policy were incorporated from the Irish Constitution which mandated the role of the state, but owing to the severe resource deficit that the independent India faced, and the towering and colossal task of nation building that lay ahead, it was decided that these guidelines should not be mandatory, but should express in its entirety the intention of the Constitution framers. The Directive Principles of State Policy were therefore kept Unjusticiable, i.e. they could not be enforced in the Court of Law.
However, even after sixty five years of Independence, when the country still is representative of an India within an India, one which is progressing at a rapid double digit growth rate, in stark contrast to another which also houses the largest Below Poverty Line population of the world, both in terms of percentage as well as in absolute terms, it is but obvious that the Access to Justice is yet a distant dream to be achieved. With specific reference to the underprivileged sections of the society, there has been more than one reason to fret over:
- Poor Implementation of Strategies
- Heavy Dependence on Erratic Monsoon, with no back up plans.
- Exploitation at the hands of the Have’s.
- Stagnation or Rapid decrement of Resources.
- Focus on Immediate Relief rather than choosing Self Reliance.
There may be a host of contributing factors for this despicable situation; however what is also worth observing is that there is a strong sense of conditioning that has been a resultant vector of this continuous oppression.
Author: Prof. (Dr.) Ranbir Singh, Vice-Chancellor, National Law University of Delhi.
New Delhi, India