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The dynamics of access to justice

Tuesday 29 May 2007, by KRISHNA IYER*V.R.

An effective free legal aid system and speedy disposal of cases are ways to improve the present situation.

THE JUSTICE system across the nation must be made accessible to the poor and the handicapped who are currently priced out of the courts and tribunals. A fundamental restructuring of the judicial administration is needed for this. We have still not departed from the British-Indian pattern of justice administration. The current system is dilatory, multi-tiered, alien to, and expensive for, the average Indian.

When people talk about access to justice, they may mean many different things depending on their ethos and socio-economic history, and developmental potential. But every discussion assumes a goal called "justice," and assumes further that some group or individual in a society finds the door to justice closed, or at least too stiff to move on its hinges. The ways in which justice is denied are various — it costs too much, or is, for whatever reason, too difficult, too alien, or too slow for the group or individual shut out. The sufferers may be, in general, the poor, or the lower class, or some other disadvantaged section. In some societies, it is a racial minority or an ethnic group, or simply the working class. Many people, in recent years, have also come to feel the problem extends as well to groups with more diffused interests — the general consumer, or the man and woman on the street. This last idea, that those with diffused or general interests have trouble accessing the levers of the law, is one of underpinnings of the "public interest" law movement in the United States.

In India, we have a system that ends up with the two sides to a dispute being represented by professional advocates. Our British-Indian heritage, which remains the same after Independence, involves the Bar as integral to the system. Therefore, access to justice makes access to the Bar a sine qua non. If advocates and the other formalities become too expensive, a large majority of the poor are priced out of the judicial market. Good lawyers have to be paid high. The complicated procedures demand investment beyond the means of the indigent litigant who belongs to weaker classes while the opposite party hires expensive lawyers and vanquishes the handicapped, although justice may be on his or her side.

What is the solution? An effective free legal aid system that will provide Adivasis and other backward classes with lawyers of competence and commitment. A comprehensive national scheme sensitive to the disadvantaged is necessary. The statutory scheme now operative is altogether inadequate, limited, and alien to the illiterate and indigent. A dynamic system accessible to the humblest must be brought in. The all-India Bar has a catalyst role in this regard. Every Bar Association must set up a panel of legal activists who have concern for equal justice for the underprivileged, who will render efficient free service in court and by way of consultation and advice and promotion of settlement of the issues. The Bar Council must subsidise this panel. Free legal aid is no charity but incidental to fundamental rights, rather human rights in their holistic perspective.

Another serious flaw is the provision for too many appeals, revisions, and reviews that end up emptying the pockets of the poor. Early and, if possible, just settlement of disputes are the requisite of a healthy legal system. Today, the trial court, with heavy court fee, is the beginning of a litigative battle that never sees an end even after decades. Cases pending in the high courts after decades of delay in the lower courts is pathetic injustice. There is no reason why the procedure should not be simplified — revisions abolished, number of appeals reduced, cases finished in the course of a year. Why not evening courts and attempts at settlement by advocates and judges? There are many ways of eliminating litigation by the advocates on either side — reducing the play of technicality to reach a fair arrangement. This is never done these days and courts are lost in leisurely hearing and long arguments. Even judgments after arguments take considerable time, sometimes years. The victim in all such cases is the economically backward party. Judge Learned Hand has cynically remarked that a party must execute a will before he goes to court, because who knows he will survive by the time the case is over. The Bar has an activist role in making the legal process more streamlined, simple and economical.

The rules of interpretation of statutes are too technical, arcane, sometimes fossilised making the meaning of the law beyond plain understanding. This also affects the poor who cannot afford to consult lawyers for every riddle in the law. Our jurisprudence must be more plain and promotive of justice, not legalistic and wrapped in a mystery inside an enigma. Labour law, real estate legislation, and confusing plurality of precedents make social justice an imbroglio. The social philosophy of the Bench and the Bar must accord with the pro-humanism of the supreme law.

The tryst with destiny made when India won independence emphasised the alleviation of poverty and inequality, which are aspects of economic injustice. Therefore, our jurisprudence must possess a vision of this social philosophy. The judicature must be an instrumentality to fulfil the sublime objective of "wiping every tear from every eye." This message must inform the interpretation of law, the compassion of the statute book, and access to justice in this dynamic dimension. The spiritual-material ethos must be humanity more than legality.

(The writer is a former Judge of the Supreme Court of India.)

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