Access to Justice – Right or Service? by – Ishita
Access to Justice – Right or Service?
Authored by – Ishita
Justice is the most important and
desirable facet of every civilized society. Like human beings can’t survive
without oxygen, society can’t survive without justice. Justice not only deters
crime in society but also provides safety to society. After being such an
important part of society, access to justice is a still problem in every
society. In this article, I dealt with the issue of court fees which by costing
justice, is limiting the ambit of the justice system in society. Court fees are
the very oldest concept and prevail almost in every society. While discussing
the concept of court fees, I discussed how court fees are affecting the justice
system of society. With that, I provide recommendations to do instead of
charging court fees. In the end, the
conclusion of this article reflects the answer to the theme of the article,
whether access to justice is – Right or Service?
The famous Latin phrase, “ubi jes ubi
remedium” means that where there is a right, there is a remedy. The process of
enforcing the person’s right and providing a remedy is known as justice. There
would not be a civilized society without access to justice. According to the
United Nations, Access to justice is a basic principle of rule of law. In the
absence of access to justice, people are unable to have their voices heard,
exercise their rights, and challenge discrimination[1].
The declaration on the High-level meeting of the general assembly on rule of
law emphasized that it is the duty of the state to provide an access to justice
to all people[2]. The
concept of access to justice can trace back to the formation of the magna carta
in 1215 in England. It was the social commitment from the king that no one is
above the law and everyone would have access to justice it quotes “ To no
one we will sell, to no one will we deny or delay right to justice” Access to justice after being a fundamental
part of civilized society, still is not easily accessible to the general
public. According to the report of the World Justice Project on access to
justice :
·
1.5
billion people cannot access to justice in civil, administrative and criminal
problems.
·
4.5
billion people are excluded from the opportunities law provides such as
employment and housing.
·
253
million people live in extremely injustice conditions.
·
5.1
billion people faced one of these justice problems[3].
Recognition :
After being part of every civilized
society, components of excess to justice are very vast. To know, whether access
to justice is right or a service. It is very important to know in what sense
International law recognizes access to justice. Access to justice is recognized
in many international covenants and commentaries which are given below:
1.
The
Universal Declaration of Human Rights (UDHR) recognizes a broad conception of
access to justice under Article 8 which says,
“Everyone has the right to an
effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law[4]”
2. The International Covenant on Civil
and Political Rights (ICCPR) also provides the right to access justice by
putting the responsibility on the state:
According to Article 2 of the
covenant, each state party has to undertake,
“a. To ensure that any
person whose rights or freedoms as herein recognized are violated shall have an
effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity;
b. To ensure that any
person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State, and to
develop the possibilities of judicial remedy;
c. To ensure that the competent
authorities shall enforce such remedies when granted[5].”
According to article 14(1):
“All persons shall be equal before
the courts and tribunals. In the determination of any criminal charge against
him, or of his rights and obligations in a suit at law, everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law”
3. The International Covenant on Rights
of the Indigenous person also provides the special right to access to justice
under Article 40 of this covenant which says :
“Indigenous peoples have the right to
have access to and prompt decision through just and fair procedures for the
resolution of conflicts and disputes with States or other parties, as well as
to effective remedies for all infringements of their individual and collective
rights. Such a decision shall give due consideration to the customs, traditions,
rules and legal systems of the indigenous peoples concerned and international
human rights[6].”
4. The Convention on Rights of Persons
with disabilities also provides a provision for easy access to justice to all
the persons having disabilities under Article 13 of this convention which says,
“States Parties shall ensure effective access to justice for persons with
disabilities on an equal basis with others, including through the provision of
procedural and age-appropriate accommodations, in order to facilitate their
effective role as direct and indirect participants, including as witnesses, in
all legal proceedings, including at investigative and other preliminary stages.
In order to help to ensure effective access to justice for persons with
disabilities, States Parties shall promote appropriate training for those
working in the field of administration of justice, including police and prison
staff.[7]”
5.
In the Vienna Declaration and
program of action, 1993 while focusing on the state’s duty to provide access to
justice says,
“ Every State should provide an
effective framework of remedies to redress human rights grievances or
violations. The administration of justice, including law enforcement and
prosecutorial agencies and, especially, an independent judiciary and legal
profession in full conformity with applicable standards contained in
international human rights instruments, are essential to the full and
non-discriminatory realization of human rights and indispensable to the
processes of democracy and sustainable development. In this context,
institutions concerned with the administration of justice should be properly
funded, and an increased level of both technical and financial assistance
should be provided by the international community. It is incumbent upon the
United Nations to make use of special programmes of advisory services on a
priority basis for the achievement of a strong and independent administration
of justice.[8]”
6. In general recommendation given by
the committee on the elimination of discrimination against women says for
access to justice :
“Discrimination may be directed
against women on the basis of their sex and gender. Gender refers to socially
constructed identities, attributes and roles for women and men and the cultural
meaning imposed by society on to biological differences, which are consistently
reflected within the justice system and its institutions. Under article 5 (a)
of the Convention, States parties have an obligation to expose and remove the
underlying social and cultural barriers, including gender stereotypes, that
prevent women from exercising and claiming their rights and impede their access
to effective remedies[9]”
By reading all of the definitions
given under different declarations and conventions, we can deduce five basic
principles accepted to determine what comes under the ambit of access to
justice or not. These principles are as follows:
1. For access to justice, there is a
need for an effective remedy for every crime because only this can produce
a deterrent effect in society and hence justice will be served.
2. Judicial courts are the only
organization for enforcing the rights of people, and hence it is mandatory that
all the courts should be impartial.
3. With the independence of the courts,
for access to justice in society, it is mandatory that all the hearings
shall be impartial in the court.
4. As justice can be difficult to access
for disabled persons, women, and children. Due to this, access to justice also encourages
making special provisions for disabled persons, women, and children.
5. Right to access justice is a human
right, and there shall not be any discrimination in the courts during
justice.
Right
or Service? :
After knowing the principles of
access to justice, one thing is clear access to justice is directly related to
access to the judiciary. The judiciary is the only organization which is
dealing with justice. The judiciary is
an inseparable part of every civilized country and it is the duty of the State
for making this institution. As the question of access to justice is directly
related to access to the courts, the question is whether courts are easily
accessible as of right of citizens or they are working as a service institution
to society.
The distinction between rights and
services is very clear, Rights are the common claim of every individual in
society and services are the claim of a specific person who fulfilled the
condition to get a service.
Now as the question is whether access
to justice is given as a right to society or as a service to Society. For this,
we would know, how the justice system of every country is working.
According to DLP Piper, Global litigation
guide, 2019
·
Australia:
All courts in Australia, impose court fees in addition to some other fees. As
of 2019, the rate of commencing proceeding in the Federal court of Australia is
AUD 4,045.
·
Canada: In
Canada, court fees are on the basis of procedural steps, like filing a suit,
defending a suit, and motion in a suit, and in each step the fees would be less
than CAD 400.
·
United Kingdom: In the United Kingdom, court fees depend on the amount of the claim.
·
United States of America: In the USA, court fees include, transportation fees,
copying fees, and Fees of translators and experts.
·
India: In
India, there is a court fees act, 1850 which court fees depend on the amount
claimed.[10]
According to the above data, it can
be clearly seen that for access to justice, all the countries are taking
special amounts in the face of court fees, from society. By charging the court
fees, States made access to justice a service to society and this narrowed the
ambit of access to justice in society.
Judicial Dictum :
We see the legislative and executive
points of view on access to justice, but it is important to know what the
judiciary is thinking about the court fees that are taken in the courts. For
this, I collected different approaches of different courts of the countries on
the court fees and these views are given follows :
In, Hussainara Khatoon v. State
of Bihar[11],
The Supreme Court held that free legal aid
services are an indispensable part of Article 21 of Indian Constitution which
talks about right to life and personal Liberty.
In, Madbury v. Madison[12],
The USA Court quoted "The very essence of civil liberty
certainly consists in the right of every individual to claim the protection of
the laws, whenever he receives an injury. One of the first duties of government
is to afford that protection. In Great Britain, the King himself is sued in the
respectful form of a petition, and he never fails to comply with the judgment
of his Court"
In P.M. Aswathanarayana Shetty v. State of Karnataka [13]
the
Court stated that a person who lodges a complaint before the police is not
expected to pay for the services of the police on the basis whether the subject
of complaint is big or small in terms of money. So also in the case of the
system of delivery of justice, the State is not supposed to collect fee
depending on the nature of the subject matter in dispute. The Court quoted the
dictum in the fictional Hogby v. Hogby.
"if
the Crown must charge for justice, at least the fee should be like the fee for
postage, that is to say, it should be the same, however long the journey may
be. For it is no fault of the litigant that his plea to the King's Judges
raises questions more difficult to determine than another's and will require a
longer hearing in Court. He is asking for justice, not renting house
property"
In, Central
Coal Fields Ltd. v Jaiswal Coal Co.,[14]
The court observed, The right of effective
access to justice has emerged in the Third World countries as the first among
the new social rights what with public interest litigation, community based
actions and pro bono publico proceedings. 'Effective access to justice' can
thus be seen as the most basic requirement - the most basic 'human right' - of
a system which purports to guarantee legal rights."
In, Trial Lawyers Association
of British Columbia v Attorney-General of British Columbia[15],
The Canadian court while declaring no
power to governments for imposing fees to resolve civil disputes from superior
court said, there cannot be a rule of law without access, otherwise, the rule
of law is replaced by a rule of men and women who decide who shall and who
shall not have access to justice.
In R v. Lord Chancellor,
The common law court s[16]aid,
Access to the courts is a constitutional right; it can only be denied by the
government if it persuades Parliament to pass legislation which specifically –
in effect by the express provision – permits the executive to turn people away
from the court door.
After reviewing all of the judgments
of different courts, it can be seen that even the courts are against the Court
fees. Every court is of the belief that it is the duty of the state to provide
justice and hence it should be given to everyone in the form of their right and
not in the form of services.
Shortcomings :
As we see how states are taking fees
from the society for providing them justice, it is important to know due to
this, what are the problems that ae arising :
1. Discourage honest Litigation : The history of court fees act can
taken back to Bengal regulation of 1795. At that time, Lord Macaulay,
headed the law commission, declared court fees absurd because this would also
lead to the discouragement of honest litigations. Before filing a case, every person should
have to pay the court fees and this only discourages them to go to court.
According to the Survey of World Justice Project, 2019[17],
a total of 49% experience legal problems but out of which only 17% of
people go to a third-party authority or courts for resolutions.
2. Financial issues; Despite having provisions for free
legal aid services, finance is still a bigger obstacle on the road to access to
justice. As free legal aid services are provided to a limited section of
society, the majority of people still suffered from financial losses. According to the World Justice Report[18],
out of 17% who went for resolution, 16% think never would have justice because
of lack of money.
3. Lack of Justice Infrastructure: According to proponents of court
fees, they believe this fee would help them for making infrastructure for the
justice system. The court fees are of
decade long act and still, there are 14.7 judges per million population in
India.[19]
According to the 189th report[20]
of the Law commission, the amount of court fees is more than the amount spent
on the infrastructure of judicial system.
4. Criminalizing Poverty : According to the recent report[21],
court fees can criminalize poverty. As due to the poverty, they are unable to
pay the court fees and eventually it helps the opposition, and it leads to injustice in the society.
Recommendations :
1. End court fees : I strongly recommend on the basis
of above evidence to end court fees. In 2020, California became first state in
United State of America to end court fees by considering the poor families[22].
Court fees is nothing but just an extra burden to the poor families which make
access to court more difficult.
2. Inclusion in Tax: Every countries have their own tax
system, as all the public duties are performed by that money. This should also
include judiciary. As, that recently happened in California, all the judiciary
expenses incurred from the government which they received in the form of taxes
from the citizens.
3. Deterrent Laws: The proponents of court fees are of
believe that court fees helped against the frivolous proceedings. The state can
make deterrent laws to prevent frivolous proceeding instead of costing the justice.
In one of the study reports, It shows that court fees do not have any deterrent
effect over frivolous proceedings[23].
Conclusion :
Justice System is the oxygen of every
civilised society and by charging the justice, they limit their ambit to
society. As a person can’t live without food, a civilised society also can’t
live without justice. It is the basic necessity of every individual and that
shall be provided by the state.
There is no doubt that in every
country, there is presence of free legal aid services which covers court fees
as well but as these services are not available to very person and by
considering the length of case, people have to pay heavy amounts for the
justice. As we don’t pay to the police for the investigation and filing a case,
same should be in the case of judiciary because without enforcing machinery of
judiciary, every investigation is toothless.
[3]
World Justice Project, “ Global insights on access to justice”
[4] https://www.un.org/en/about-us/universal-declaration-of-human-rights
[5] https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights#article-12
[7] https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-persons-disabilities
[11]
1979 AIR 1369
[12] 5
U.S. 137 (more)1 Cranch 137
[16] [1997]
2 All ER 779
[17] Supra
note 3.
[18] Supra
note 3.
[19]https://archive.pib.gov.in/archive/releases
[20]
Law commission report, “ 189th report on revision of court fees”
2003.
[21]
American Sociological Association, “ Criminalizing Poverty: The consequences of
court fees in randomized experiment” 2022.
[22] https://sftreasurer.org/california-becomes-first-state-nation-end-collection-fees-criminal-legal-system
[23]
Brennan centre of justice, “The steep costs of criminal justice fines and
fees”2019.