A VIEW ON ACCESS TO JUSTICE IN INDIA BY - C. YOGAMURUGAN
A VIEW ON ACCESS TO JUSTICE IN INDIA
AUTHORED BY - C. YOGAMURUGAN[1]
ABSTRACT:
Access to justice relates to the ease
of entry to a legal institution as also to the nature of the de jure fact that
carries its promise. Judiciary is an important arm of the state, the Indian
Constitution rested its confidence in it to watch over and assist the
population in their realisation of the constitutional dictums. The aim of the research
is to ascertain the difference between the level of access to justice between
the Judicial mechanisms and State Adjudicatory mechanisms and thereby,
ascertain the satisfaction of the people on receiving access and remedy from
the available mechanisms. The major objective of this study is to determine the
accessibility levels of Justice in India. Convenient sampling method is used to
collect the samples. The sample size of the research is 200. Independent
variables are gender, age, education qualification and occupation. The
dependent variables are “Justice Accessibility in India” and “State has
provided effective adjudicatory mechanisms.” The statistical tools used in this
study are graphical analysis, t-test and pictorial representation. The Study has
empirically ascertained through graphical analysis that the accessibility has
seen a declining curvature of access to justice since the Golden Period of
Indian Judiciary(1950 to 1970) and that the State has been supplementing the
failure of the Judiciary to fill the lack of the accessibility to justice. The
research therefore concludes through the findings of the empirical study that
the accessibility to Justice through Judicial mechanisms is largely compromised
in the Country, whereas the State Adjudicatory mechanisms have developed to
have become the alternative access to Justice for the people of India.
KEYWORDS:
Justice, Access, State, Adjudication,
and Remedy
INTRODUCTION:
Judiciary as an important arm of
State, the Indian constitution rested its confidence in it to watch over and
assist the populace in their realisation of the constitutional dictums of
Justice, Liberty, Equality and Fraternity and to guide and caution the
Legislature and Executive for any excess through Arts 32, 226, 141 and 142. Delay in dispensation of justice system not
only paralyses but denies the parties to exercise their rights freely. The
protracted justice system has a definite impact on the growth and development
of the economy, as the investors of foreign nations are averse to come to
India, with the fear that whenever they get entangled in a dispute, there is no
time bound settlement of their legal grievances. Access to Justice as a natural
right in its evolutionary stages did not require the affirmative action of the
state to seek justice from the courts at ease. But the transformation of state
from ‘authoritarian’ to ‘welfarist’ in modern periods, access to justice too
transformed itself into a right to effective justice and became a human right
and guarantees all the legal rights. The changing perception and discharge of
duties of state in modern times, state itself became a party to deny, take away
or subvert the rights of its citizenry knowingly or unknowingly through knitted
intricacies of legislative or administrative acts on the name of welfarism of a
section of people or up-liftment of the in-equals or underprivileged. The
Supreme Court of India is facing a number of issues including the volume of
pendency of cases. Further, on one or other pretext at regular intervals often
called to address some urgent matters, which may have political or national
interests, which also disrupt its functioning including clearing of backlog.
India being a cooperative federation, and the Supreme Court has a number of
jurisdictions to address a wide variety of disputes, it is becoming difficult
to render justice to parties at the earliest. The country needs to establish at
least two divisions of the Supreme Court amending the constitution. One branch
be left to deal with Civil Cases and one be made in charge of exclusively
criminal cases and may be named as Supreme Court of Civil Judicature and
Supreme Court of Criminal Judicature. By dividing the Supreme Court like this,
the Indian Supreme Court certainly could guide the country through a number of
ways and means and can be equivalent to that of the Supreme Court of USA in
evolving furthermore quality judgments to help the legal system with much more dynamism
to nurture the principles of Social Justice. The aim of the research is to ascertain the difference between the
level of access to justice between the Judicial mechanisms and State
Adjudicatory mechanisms and thereby, ascertain the satisfaction of the people
on receiving access and remedy from the available mechanisms.
OBJECTIVES:
? To determine the accessibility
levels of Justice in India.
? To ascertain the reasons for lack
of access to Justice in India.
? To determine the ways to improve
access to Justice in India.
REVIEW OF LITERATURE:
(Badami and Chandu) have reviewed that access to justice
as a human right is broad in its perspective and looks beyond the general
perception of easy access to judicial institutions and quick dispense of
justice to the problems of the aggrieved parties. (Bajpai) has studied that in order to protect
the concept of rule of law and legal access to justice at ease, both at the
international and national frontiers, the nation-states, giving a flip to
natural rights laid the foundations for the development of human rights,
through the Charter of the UN. On this edifice, while expanding the canon of
human rights, access to justice became a cornerstone of a number of
international and regional documents starting from the UDHR. (Peysner) has concluded in his study that by dividing the Supreme
Court like this, the Indian Supreme Court certainly could guide the country
through number of ways and means and can be equivalent to that of the Supreme
Court of USA in evolving furthermore quality judgments to help the legal system
with much more dynamism to nurture the principles of Social Justice. (Maranlou) has concluded in his research paper that relevancy is more
important than yester years, in spite of wide ranging debates, discussions and
suggestions rendered by every possible quarter by native and foreign scholars,
researchers, institutional studies with roll-costar remedial mechanism for
reforms to empower judiciary to weed out its weakest arm of judicial pendency
in dispensing justice at ease, and, to bail out millions of our brotherhood who
are languishing in the corridors of judicial tangles for justice to enjoy their
basic rights. (Konoorayar) has revealed from his study that in
spite of the innumerable problems surrounding it, people still have faith in
judiciary hence knock its doors with a hope to get justice in spite of paucity
of funds, judges, courts. These issues not only delay in justice administration
but also diminish the chance of Access to justice, which is crucial for the
enjoyment of human and fundamental rights of citizenry of a polity. (Guruswamy and Aspatwar) have studied in their study that in
stark contrast to theoretical perceptions of law and justice, delay in
rendering justice constitutes as a primary percept of access to justice and
enjoyment of rights freely that are accorded both by international instruments
and the constitution of India. (Jain) states that, Access to justice, if regarded as an
instrument to good governance, has a number of parameters to look beyond,
especially in augmenting the rights of disadvantaged and vulnerable groups
including the poor. (Samaddar) studied the basic concept of access
to justice and enjoyment of rights freely or accorded by both international
instruments or laws and the Indian constitution. (Skinner) found that nyaya panchayats had faced severe problems of
establishing their independent personalities with the parties approaching them.
(Muralidhar) stated that in the early 1980s,
judges, lawyers and the Constitution promised Justice and Public interest
litigation and sought to use judicial power to protect the powerless. (Sanderfur) found that the quota policy gives
special treatment to disadvantaged classes to help equalise their power and
status. (Kapilashrami) identifies that social justice in
India is highly influenced by gender inequality. Not only is the delay in
justice a major issue but inequality itself is a major issue that does not
provide speedy trial and the access to justice at this point would be
questionable. (de Souza and Spohr) state that lack of knowledge leads
to misuse of access to justice, therefore legal education must place high
priority on public service. The basic knowledge of an individual‘s fundamental
rights must be enlightened to them in order to ensure that it is claimed in the
future. (Trindade) stated that rule of law is useless, unless there is access
to justice for the common people as it is their fundamental right. (“Procedures and Access to Justice in Damages Claims for
Public Procurement Breaches”) states that access to justice is
often used as a term for access to the formal institution of the legal system
by those in search of a remedy. (Kannabiran) found that in the case of Anita Kushwaha v. Pushap Sudan it was clearly stated that access to justice is a
facet of right guaranteed under Article 14 and Article 21. (Ostfeld) found that
there are many cases pending before the Indian courts and there is no speedy
trial; they quote the saying “ justice delayed is justice denied”. and conclude
that the judiciary fails to fill the lack of access to justice. (Harris) defines the preamble and states that the term social,
economical and political means to provide justice in various manners. (Nur Mohammad Abdullah and Rashid) found that the state has established
NALSA, State legal service authority, District legal service authority, supreme
Court legal service committee and High Court legal service committee and
concludes that the state judicial mechanism is much more approachable. (Chattaraj) concludes that access to justice is very important in order
to provide speedy trials, awareness among the citizens etc.
METHODOLOGY:
The current study is based on
empirical research. It is consisting of the scientific frame of research. It
began with the finding of research problems based on the review of literature.
The major contribution of the study is to collect the legal facts of a
particular area and to test the hypothesis of a cause and effect relationship
between variables. The research design is exploratory and experimental. It
explored the problem tested with hypotheses and provided the solution from the
analysis. Convenience sampling method is used (Non probability sampling). The sample size is 200. The data is refrained
finally as Data is collected through the primary and secondary sources.
Questionnaire is used as the primary data collection and the articles,
journals, reports, newsletters are considered as the secondary sources. The
analysis is carried out for demographic statistics (Gender and age) and is
utilised. The dependent variables are “At what level is Justice Accessible in
India?” - accessibility level of public and “At what level do you agree that
the State has provided effective adjudicatory mechanisms” - agreeability level
of public. The statistical tool used in this study graphical analysis and
pictorial representation.
ANALYSIS:
VARIABLES:
Age:
FIG. 1
LEGEND: From
fig. 1 it’s observed that, majority of the respondents are from the age group
31-40 with 36.5%, 11.5% of above 50, 31.5% of the age group 18-30 and 20.5% of
the age group 41-50.
Gender:
FIG. 2
LEGEND: From
fig. 2 it’s observed that 50% of the respondents are men and 50% are women.
Education:
FIG. 3
LEGEND: From
fig. 3 it’s observed that, majority of the respondents have completed their UG
or persuading their UG with 67%. 28.5% respondents have completed their PG, 5%
completed HSC and 3% have completed SSLC.
Occupation:
FIG.4
LEGEND: From
fig. 4 it’s observed that 66.5% (majority of the respondents) are private
employees, 23.5% are self employed, 9% are unemployed and a mere 1% of the
respondent is a government employee.
QUESTIONS:
FIG.5
LEGEND OF FIG.5: Fig. 5 shows the gender distribution of different age groups and their
knowledge on accessibility of justice in India.
RESULT OF FIG.5: The results of Fig.5 shows that the female respondents of the age group
of the 18-30 believe that the availability of access to justice is at the very
least. On the other hand it can be observed from the respondents of the age group
of 41-50 believe that the accessibility to justice is very high. It is further
notable that the male female respondents between the age group of 30-40 believe
that the access to justice is fairly high in the country. Lastly the group of
male respondents from the age group of 18-30 have neutrality in stationing
their opinion on the accessibility of Justice in India.
DISCUSSION OF FIG.5: The results of Fig.5 shows leads this study to the discussion regarding
the period known as the golden period of the Indian Judiciary. The years
between 1950 and 1975 is known to be the golden period. The opinion of those of
the age group of 41-50 shows that those who existed during the golden period of
the Indian judiciary still believe that the accessibility to justice is
extremely high. But on the other hand the generation that buds as seen front
the opinion of the respondents from the age group of 18-30, shows that the
accessibility of justice to people is not up to the mark and is largely
compromised.
FIG. 6
LEGEND OF FIG.6: Fig 6. shows the gender distribution of different age groups and their
satisfaction level towards adjudicatory mechanisms provided by State.
RESULT OF FIG.6: The results of Fig.6 show that the male respondents between the age group
of the 41-50 show that their opinion towards the satisfaction level of the
State Adjudicatory mechanisms are high. On the other hand the male respondents
of the age group of 31-40 are in favour of the opinion that the State has not
provided satisfactory adjudicatory mechanisms for the access of the people.
Lastly it cannot be disregarded that the female respondents within the age
group of 41-50 have neutrality in their opinion and show inclination towards a
fairly satisfactory stand in regard to the effectiveness of the State
adjudicatory mechanisms.
DISCUSSION OF FIG.6: The discussion of this study is influenced by the results of the research
problem in regard to the difference between the Indian Judiciary measures and
the State Adjudicatory measures towards providing the effective access and
remedy to the legally injured. The term ‘State’ under Article 12 cannot be
interpreted in this regard to include the Judiciary under the term ‘other
authorities’. Therefore the Judicial measures as seen in Fig.6 were shown to provide
poor accessibility of justice in regard to the findings of this study. Now that
the State Adjudicatory mechanisms such the tribunal like the NCLT and DRT which
arise as a quasi-judicial body under the grant of a Statute are found to be
more accessible to Justice according to the findings of Fig.6. The State
Adjudicatory mechanisms being far more accessible to justice than the Judicial
mechanisms available within the Country,
the opinion of the people on their level of satisfaction and the level of effectiveness
is far more inclined towards the State than the Judiciary.
TABLES:
1. At what level justice is accessible in India?
H0: There is no significant
association between age and accessibility of justice in India.
Ha: There is a significant association
between age and accessibility of justice in India.
|
Crosstab
|
|||||||
|
Count
|
|||||||
|
|
1. At what level justice is accessible in India?
|
Total
|
|||||
|
1.0
|
2.0
|
3.0
|
4.0
|
5.0
|
|||
|
Age
|
18-30
|
3
|
24
|
11
|
11
|
14
|
63
|
|
31-40
|
0
|
1
|
23
|
17
|
32
|
73
|
|
|
41-50
|
0
|
0
|
11
|
0
|
30
|
41
|
|
|
50 above
|
1
|
0
|
1
|
21
|
0
|
23
|
|
|
Total
|
4
|
25
|
46
|
49
|
76
|
200
|
|
|
Chi-Square Tests
|
|||
|
|
Value
|
df
|
Asymptotic Significance (2-sided)
|
|
Pearson Chi-Square
|
140.574a
|
12
|
.000
|
|
Likelihood Ratio
|
143.804
|
12
|
.000
|
|
Linear-by-Linear Association
|
19.310
|
1
|
.000
|
|
N of Valid Cases
|
200
|
|
|
|
a. 5 cells (25.0%) have expected count less than 5. The minimum
expected count is .46.
|
|||
|
Symmetric Measures
|
|||||
|
|
Value
|
Asymptotic Standardized Errora
|
Approximate Tb
|
Approximate Significance
|
|
|
Interval by Interval
|
Pearson's R
|
.312
|
.062
|
4.613
|
.000c
|
|
Ordinal by Ordinal
|
Spearman Correlation
|
.321
|
.066
|
4.772
|
.000c
|
|
N of Valid Cases
|
200
|
|
|
|
|
|
a. Not assuming the null hypothesis.
|
|||||
|
b. Using the asymptotic standard error assuming the null
hypothesis.
|
|||||
|
c. Based on normal approximation.
|
|||||
DISCUSSION:
The
value of the test statistic is 140.574. Because the test statistic is based on
a 5x4 cross tabulation table, the degrees of freedom (df) for the test
statistic is df=(R?1) ?(C?1) = (5?1) ? (4?1)
=4?3=12.
The corresponding p-value of the test statistic is p <0.05. Since the
p-value is smaller than our chosen significance level (? < 0.05), the null
hypothesis is rejected. Rather, we conclude that there is enough evidence to
suggest an association between age and the accessibility of justice in India.
It can be inferred from the results that there is an association between age
and how it influences the awareness
level (?2 (8)> = 140.574, p < 0.05). Amongst the different age groups,
those who are 18-30, agree more with the statement that there is lack of accessibility
of justice.
2. At what level do you agree that the state has provided effective
adjudicatory mechanisms?
H0: There is no significant
association between age and effective adjudicatory mechanisms.
Ha: There is a significant
association between age and effective adjudicatory mechanisms.
|
Crosstab
|
|||||||
|
Count
|
|||||||
|
|
2. At what level do you agree that the state has provided
effective adjudicatory mechanisms?
|
Total
|
|||||
|
1.0
|
2.0
|
3.0
|
4.0
|
5.0
|
|||
|
Age
|
18-30
|
0
|
17
|
19
|
25
|
2
|
63
|
|
31-40
|
0
|
2
|
23
|
29
|
19
|
73
|
|
|
41-50
|
0
|
9
|
14
|
3
|
15
|
41
|
|
|
50 above
|
2
|
0
|
9
|
12
|
0
|
23
|
|
|
Total
|
2
|
28
|
65
|
69
|
36
|
200
|
|
|
Chi-Square Tests
|
|||
|
|
Value
|
df
|
Asymptotic Significance (2-sided)
|
|
Pearson Chi-Square
|
69.380a
|
12
|
.000
|
|
Likelihood Ratio
|
77.141
|
12
|
.000
|
|
Linear-by-Linear Association
|
1.210
|
1
|
.271
|
|
N of Valid Cases
|
200
|
|
|
|
a. 6 cells (30.0%) have expected count less than 5. The minimum
expected count is .23.
|
|||
|
Symmetric Measures
|
|||||
|
|
Value
|
Asymptotic Standardized Errora
|
Approximate Tb
|
Approximate Significance
|
|
|
Interval by Interval
|
Pearson's R
|
.078
|
.070
|
1.101
|
.272c
|
|
Ordinal by Ordinal
|
Spearman Correlation
|
.115
|
.070
|
1.635
|
.104c
|
|
N of Valid Cases
|
200
|
|
|
|
|
|
a. Not assuming the null hypothesis.
|
|||||
|
b. Using the asymptotic standard error assuming the null
hypothesis.
|
|||||
|
c. Based on normal approximation.
|
|||||
DISCUSSION:
The
value of the test statistic is 69.380. Because the test statistic is based on a
5x4 cross tabulation table, the degrees of freedom (df) for the test statistic
is df=(R?1) ?(C?1) = (5?1) ? (4?1)
=4?3=12.
The corresponding p-value of the test statistic is p <0.05. Since the
p-value is smaller than our chosen significance level (? < 0.05), the null
hypothesis is rejected. Rather, we conclude that there is enough evidence to
suggest an association between age and lack of effective mechanism. It can be
inferred from the results that there is an association between age and how it influences the awareness level (?2
(8)> = 69.380, p < 0.05). Amongst the different age groups, those who are
31-40, agree more with the statement that there is a lack of effective mechanism.
SUGGESTIONS AND CONCLUSION:
Access to justice is available and guaranteed
in the Indian Constitution. The major objective of this paper is to ascertain
the reasons for lack of access to justice in India. The study from its findings
is provoked to suggest the increase in the creation of Statutory bodies for the
effective adjudication of the disputes as it has previously done by the
creation of the NCLT and the DRT. Also the study suggests that the Judiciary
shall implement a two fold structure like the Judicial System of the United
States of America, where there exists a Supreme Judicature of Criminal Cases
and a Supreme Judicature of Civil Cases. Since the State Adjudicatory
mechanisms are far more accessible to Justice than the Judicial Mechanisms
prevalent in the Country, the Study also believes that if the Judiciary were to
introduce a Supreme Court of Arbitration like the International Court of
Justice, the accessibility to Justice may drastically rise. The Study has
empirically ascertained that the accessibility has seen a declining curvature
of access to justice since the Golden Period of Indian Judiciary(1950 to 1970)
and that the State has been supplementing the failure of the Judiciary to fill
the lack of the accessibility to justice. The research therefore concludes
through the findings of the empirical study that the accessibility to Justice
through Judicial mechanisms is largely compromised in the Country, whereas the
State Adjudicatory mechanisms have developed to have become the alternative
access to Justice for the people of India.
REFERENCES:
- Badami, Neela, and Malavika Chandu. “Access to Justice in India.” Institutional Competition
between Common Law and Civil Law,
2014, pp. 211–35, doi:10.1007/978-3-642-54660-0_7.
- Bajpai,
Asha. “Right to Childhood and Equitable Access to Justice.” Childhoods in India,
2017, pp. 299–321, doi:10.4324/9781315098395-14.
- Chattaraj,
Abir. “Justice Delayed-Justice Denied - The Right to Speedy Trial in
India.” SSRN
Electronic Journal,
doi:10.2139/ssrn.1919493.
- de
Souza, Siddharth Peter, and Maximilian Spohr. Technology, Innovation and
Access to Justice: Dialogues on the Future of Law.
Future Law, 2020.
- Guruswamy,
Menaka, and Bipin Pradip Aspatwar. “Access to Justice in India: The
Jurisprudence (and Self-Perception) of the Supreme Court.” SSRN Electronic Journal,
doi:10.2139/ssrn.2498459.
- Harris,
Bede. “Access to Constitutional Justice.” Constitutional Reform as a
Remedy for Political Disenchantment in Australia,
2020, pp. 213–28, doi:10.1007/978-981-15-3599-4_11.
- Jain,
Mahak. “Access to Justice in India: A Critical Analysis.” SSRN Electronic Journal,
doi:10.2139/ssrn.3771945.
- Kannabiran,
Kalpana. Tools
of Justice: Non-Discrimination and the Indian Constitution.
Routledge, 2013.
- Kapilashrami,
Anuj. “Transformative or Functional Justice? Examining the Role of Health
Care Institutions in Responding to Violence Against Women in India.” Journal of Interpersonal
Violence, Oct. 2018, p. 886260518803604.
- Konoorayar,
Vishnu. “Old Wine in New Bottle: Access to Justice in India and
Effectiveness of Gram Nyayalayas.” SSRN Electronic Journal,
doi:10.2139/ssrn.2534901.
- Maranlou,
Sahar. “Access to Justice Perspectives.” Access to Justice in Iran,
pp. 11–49, doi:10.1017/cbo9781139680493.003.
- Muralidhar,
S. Law,
Poverty, and Legal Aid: Access to Criminal Justice.
2004.
- Nur
Mohammad Abdullah, and Ahsan Rashid. Right to Speedy Trial: Indian
Judiciary and Justice Delivery System.
2015.
- Ostfeld,
Greg. “Speedy Justice and Timeless Delays: The Validity of Open-Ended
‘Ends-of-Justice’ Continuances under the Speedy Trial Act.” The University of Chicago Law
Review, vol. 64, no. 3, 1997, p. 1037, doi:10.2307/1600319.
- Peysner,
John. “The Access to Justice Movement.” Access to Justice,
2014, pp. 12–25, doi:10.1057/9781137397232_4.
- “Procedures
and Access to Justice in Damages Claims for Public Procurement Breaches.” Public Procurement Law : Damages
as an Effective Remedy,
doi:10.5040/9781472561046.ch-010.
- Samaddar,
Ranabir. State
of Justice In India: Issues of Social Justice.
SAGE Publications India, 2009.
- Sanderfur,
Rebecca L. Access
to Justice. Emerald Group Publishing, 2009.
- Skinner,
S. A. “The Church and the Poor: ‘The Poor Man’s Court of Justice’.” Tractarians and the “Condition
of England,” 2004, pp. 255–91, doi:10.1093/acprof:oso/9780199273232.003.0007.
- Trindade, Antônio Augusto Cançado. “The Interrelation between the
Access to Justice (Right to an Effective Remedy) and the Guarantees of the
Due Process of Law.” The Access of Individuals to
International Justice,
2011, pp. 63–75, doi:10.1093/acprof:oso/9780199580958.003.0004.
[1]BA.LLB.,Saveetha School of Law, Saveetha Institute of
Medical and Technical Sciences(SIMATS), Chennai-77, Tamil Nadu, India. Email: cyogamurugan@gmail.com