ROLE OF JUDICIARY IN PROTECTING THE INTEREST OF MARGINALISED COMMUNITY IN INDIA BY - MD JIYAUDDIN
ROLE OF
JUDICIARY IN PROTECTING THE INTEREST OF MARGINALISED
COMMUNITY
IN INDIA
AUTHORED BY - MD JIYAUDDIN,
Assistant Professor, School Of Law,
Vel Tech Rangarajan Dr. Sagunthala R&D
Institute Of Science And Technology,
Chennai, Tamil Nadu.
Ph: 7679682776,
Abstract
Access to
justice has been regarded as a component of the right to life. It is so
fundamental that denial of justice is regarded a direct breach of the Rule of
Law. One of the elements of the Rule of Law is that no one shall be punished
except for a violation of the law. When justice is denied due to a lack of
accessibility and quality, this element is directly violated people's rights
because they are different from the rest of society in matters of religion,
caste, sex, ethnicity and so on. India is a welfare state and as such, it must
offer equitable administration and access to justice for all citizens, which
implies that no one would be refused access to the courts. Justice must not
only be done, but it must also appear to be done. According to Article 38, the
State must create a social order that ensures social, economic, and political
fairness. The successful implementation of social justice is access to justice
for the marginalised society. Social justice is a dynamic tool for alleviating
the miseries of the poor, weak, Dalits and tribals and also other disadvantaged
members of society. Article 39A requires
the State to guarantee that the judicial system promotes justice and that the
State provides free legal assistance to ensure that no citizen is denied
justice due to economic incapacity or other limitations. The primary goal of
legal aid is to give the impoverished and disadvantaged segments of society
with the legal help they need to assert their rights in a court of law. Legal
assistance satisfies the constitutional need of equal protection of the law
enshrined in Article 14.
Key Words: - Justice, Implementation,
Marginalise, Society, Alleviate.
INTRODUCTION
The term marginalization refers to
the overt act or tendency of human societies to exclude those they judge to be
undesirable or lacking in useful functions. People excluded from a group or
community for purposes of protection and inclusion are referred to as
marginalized groups. These groups include Scheduled Castes and Tribes, women,
religious minorities, persons with disabilities and LGBTQ people. In our
society they have problems in every aspect of life and they are unable to get
justice. As we all know, our Constitution guarantees equal rights to all
citizens irrespective of religion, caste, colour, sex, place of birth or any
other reason. But they could not get justice. Justice is not a state-provided
service; it is a fundamental human right. A nation that achieves social justice
by providing equal treatment to all citizens without prejudice. It entails the
removal of advantages in favour of a certain person or community, as well as
the empowerment of underprivileged populations.
In the year 1928, Robert Park gave
momentum to the notion of marginality. According to him, it is a process in
which a person gets pushed to the margins or ignored in a group or society at
large. The Encyclopaedia of Public Health defines marginalisation as being
placed on the periphery and thus excluded from the privilege and power found at
the centre.
MEANING AND CONCEPT
The marginalised sections generally
refer to human societies' tendencies and overt actions in which those perceived
as lacking any desire or function are excluded or removed from the prevalent
system of protection and integration, limiting their opportunities and means of
survival. The term "marginalisation" refers to a scenario in which an
individual or a group is completely ignored. The grounds for such
marginalisation might range from political to economic to cultural, and so on.
Marginalisation is the process of
being ignored and marginalised in the community in which one lives. Neglect
might be social, political, or for any other reason. Being marginalised in this
context means being removed from the rest of society, forced to occupy the
margins and edges rather than the core of things. People who are marginalised
are not regarded as an active member of society. When it comes to how material resources
are distributed in society, material deprivation is the most typical effect of
marginalisation. In addition to material hardship, marginalised people are
excluded from services, activities, and policies.
SOCIALLY MARGINALISED GROUPS
In a society, marginalisation is the
specific groups of individuals, it seems as if society is unconcerned with
their suffering or existence. Certain groups of individuals are excluded or
denied to access routine activities as a result of this exclusion. Another
facet of this social separation from the dominant portions of society is social
stigma. People who are socially marginalised are typically denied social
opportunities. They may get stigmatised and are frequently subjected to harsh
public sentiments. Their possibilities to contribute to society may be
restricted, and they may develop poor self-confidence and self-esteem. Social policies and practises may limit their
access to valuable social resources such as education and health care, housing,
income, leisure activities, and employment.
Another issue is that persons born in
marginalised communities lack the social and cultural capital necessary to
engage in mainstream development processes. Their social networks are frail and
exposed. Individuals who lack social capital are denied to access the resources
such as economic, educational, cultural, and other support systems. This leads
to social isolation and restricts their ability to participate in the growth
process.
ECONOMICALLY DISADVANTAGED GROUPS
Economic marginalisation diminishes a
person's existence in society. Majorities usually enjoy support due to their
large number. In such a situation, the minority groups are sometimes
overlooked. Minorities are often left feeling uncertain about their lives and
well-being due to the treatment they are given in society. A marginalised
individual feels that he has no importance in society. They do not want to involve
in any State's economic activities. They have no access to resource and also,
they are isolated from the rest of society. All of this will have a negative
impact on their lives as human beings and members of society.
POLITICALLY MARGINALISED GROUPS
Political marginalisation prevents
the group from participating democratically in decision making, and as a
result, they lose their entitlement to all social, economic, and political
benefits. Political empowerment is one of the most significant instruments for
gaining access to other social and economic benefits. Lack of political
empowerment affects vast groups of people in every community, including women,
ethnic minorities, migrants, handicapped people, the elderly, and others. They
are not permitted to run for office or vote in the election. Because of their
lack of engagement, they are denied many of the rights that others in that
society have. As a result, they are denied the privileges of political rights.
EDUCATIONAL MARGINALIZATION
The right to education is universal
and does not permit exclusion or discrimination. However, both emerging and
developed countries confront issues in ensuring equal access to and within
education systems for all. National educational policies frequently leave
marginalised groups behind, depriving many individuals the right to an
education. People who are marginalised are more likely to face numerous levels
of discrimination since they are members of more than one marginalised group.
Non-discrimination and equality are two fundamental human rights concepts that
pertain to the access to an education. However, a substantial proportion of
youngsters in India are still excluded from the educational system and hence
unable to engage actively in their communities' economic, social, political,
and cultural life.
PSYCHOLOGICAL MARGINALISATION
Marginalisation also raises the
prospect of further psychological and ideological dangers. The first is the
defining of one's identity by others: The ideological formulation of one's
marginalised identity in the interests of society's dominant groups. All social
movements representing disadvantaged and marginalised communities have
identified and critiqued the issue. Minority groups such as those with
impairments (physical or mental), women, racial minorities, aboriginal
communities, elderly people, single moms, and homosexuals are all marginalised
as a result of dominant discourses within societal systems.
ACCESS TO JUSTICE BARRIERS FOR MARGINALISED COMMUNITIES
i.
Socioeconomic factors: Poverty and a lack of education
continue to be important hurdles to marginalised populations' access to
justice. They are unable to get legal representation or access official
judicial forums due to financial concerns. Furthermore, poor literacy levels
make comprehending legal processes and documents challenging.
ii.
Discrimination and Social Stigma: Marginalised populations are
frequently subjected to discrimination and social stigma, which contributes to
criminal underreporting and aversion to engaging with the legal system. This
generates a vicious circle of impunity for abusers and victim disempowerment.
iii.
Lack of Rights Awareness: Many marginalised people are
uninformed of their legal rights and entitlements. This lack of understanding
prevents people from pursuing legal recourse for the abuses they suffer.
iv.
Inadequate Legal assistance Mechanism: Despite the constitutional
requirement to offer free legal assistance, the provision of legal aid services
in rural and isolated regions remains restricted. To successfully reach out to
marginalised areas, the legal aid system must be reinforced and expanded.
v.
Disparities in Representation: Marginalised groups are frequently
underrepresented in the legal profession, the court, and law enforcement
authorities. This lack of representation has an impact on the administration of
justice since the experiences and views of these communities are not fully
recognised or addressed.
IMPROVING ACCESS TO JUSTICE
I.
Suggestions for Solutions Legal Literacy
and Awareness Programmes: The government should conduct comprehensive legal literacy and
awareness programmes aimed at marginalised populations in conjunction with
civil society organisations. These programmes should educate people about their
legal rights, processes, and the availability of legal aid services.
II.
Mobile Legal Clinics and Lok Adalats: Establishing mobile legal clinics
in rural places can give marginalised people with legal aid and counselling.
Lok Adalats (people's courts) can also be formed to settle conflicts amicably,
providing an alternative to the regular legal system.
III.
Strengthening the Legal Aid Mechanism: To serve the most disadvantaged
members of society, the legal aid system requires enough financing and growth.
Every district should have a legal aid clinic, and skilled paralegals should be
hired to help marginalised groups navigate the judicial system.
IV.
Judicial and Law Enforcement Officer
Sensitization:
Regular training programmes should be organised to educate judges, magistrates,
and police personnel about the special issues that marginalised population’s
experience. This will aid in the prevention of prejudice and discrimination in
judicial procedures and investigations.
V.
Affirmative Action in the Legal
Profession: Encouraging
marginalised populations' representation in the legal profession and the court
can lead to a greater knowledge and empathy for their challenges. To improve
diversity in the legal field, affirmative action measures can be used.
VI.
Specialised Courts: Establishing specialised courts to
handle cases involving marginalised populations, including as sexual offences,
caste-based crimes, and discrimination charges, might help to speed up justice
and assure better outcomes for victims.
ACCESS TO JUSTICE
In Anita
Kushwaha v. Pushap Sudan, the Supreme Court held access to justice a facet of
rights guaranteed under Articles 14 and 21 of the Constitution. The following
are the main four facets that constitute the essence of access to justice:
1. The state
must provide an effective adjudicatory mechanism.
2. The
mechanism so provided must be reasonably accessible in terms of distance.
3. The process
of adjudication must be speedy.
4. The
litigant’s access to the adjudicatory process must be affordable.
UNDERSTANDING OF THE OBSTACLES THAT MARGINALISED
POPULATIONS CONFRONT
IN ATTAINING JUSTICE
Awareness is the primary instrument
for comprehending our constitutionally guaranteed rights. There is a dearth of
knowledge among the marginalised minority. However, in today's reality, the
government is assisting such people to reach their full potential through
policies. Most women in our nation are still illiterate, and they are unaware
of their rights; nevertheless, certain non-governmental organisations are advocating
for their rights. Recently, the Supreme Court issued a landmark decision in Shayara Bano v. Union of India and Others[1]
On August 22, 2017, the Supreme Court
ruled that the practise of triple talaq was illegal, citing Articles 14 and 21
of the Indian Constitution. Three of the five justices on the Constitutional
Court ruled against triple talaq, while two sided in favour. Triple talaq
should be abolished, according to Justices Kurian Joseph, R F Nariman, and U U
Lalit, whereas CJI JS Khehar and Justice Abdul Nazeer. In recent years, the
government has implemented a slew of measures to improve access to justice and its
delivery, including the establishment of e-Courts under a Mission Mode Project
for computerization of courts and delivery of e-services to stakeholders,
funding of infrastructure in subordinate courts under State Governments, and
funding of Family Courts. The Department of Justice has requested High Courts
to launch an effort to minimise case pending and hasten case disposition.
JUSTICE INNOVATION FUND
This was an essential component of
the Project, which was developed to conduct innovative actions on legal
empowerment of marginalised people and to strengthen the skills of
intermediaries who support them. Under this, 15 programmes across 7 Project
States reached out to about 20 lakh individuals. A series of capacity building
events taught and sensitised over 7000 paralegals and 300 attorneys. Quality
legal empowerment knowledge products were generated, as well as innovative
Information Education and Communication (IEC) materials and community radio
spots to enhance legal awareness among marginalised populations.
FELLOWSHIP PROGRAMME FOR YOUNG
LAWYERS FOR JUSTICE
A training and sensitization campaign
for young attorneys was initiated in three states: Chhattisgarh, Jharkhand, and
Odisha, with the goal of encouraging them to help marginalised people gain
access to justice. A vigorous screening procedure resulted in the selection of
60 young attorneys, 20 from Chhattisgarh, Jharkhand, and Odisha. Three partner
organisations (CLAP, ELDF, and Manthan) successfully completed a series of
training sessions. Fellow attorneys were instructed and sensitised on
marginalised groups' rights and legislation, as well as advice on strengthening
professional skills such as writing, legal advising, mediation, and
conciliation. The programme received active support from Legal Services
Authorities, and young lawyers were assisted by mentors in undertaking
community level activities such as conducting legal awareness camps, providing
legal advice, counselling, and conducting action research on specific topics,
among other things.
LEGAL LITERACY TRAINING FOR SABALA GIRLS
SABALA scheme stands for Rajiv Gandhi
Scheme for Empowerment of Adolescent Girls, and it aims to empower adolescent
girls aged 11 to 18 through nutrition, health care and life skills education.
It is a currently sponsored programmed lounged by the Government of India in
2011under the Ministry of Women & Child Development. As a consequence of the confluence of two
central ministries viz. the Ministry of Law & Justice and the Ministry of
Women & Child Development offered a necessity legal literacy to SABALA
(adolescent girls covered by the WCD's SABALA scheme) arose. It was agreed to
teach Madhya Pradesh and Rajasthan SABALA females. CECOEDECON, a
Rajasthan-based group, was chosen and successfully conducted four trainings in
two states, Madhya Pradesh and Rajasthan, where 200 SABALA girls received legal
literacy training and exposure to justice sector institutions.
LEGAL LITERACY MATERIALS FOR THE SAKSHAR BHARAT SCHEME
As part of the convergence with the
MoHRD's Sakshar Bharat initiative, IEC materials (12 booklets, 10 motivating
songs, 1 short video on legal assistance, and a facilitators guide) on the
rights and entitlements of underprivileged persons were created. Adult legal
literacy will now be included in the ongoing adult literacy initiative. On
November 18, 2011, the previous Hon'ble Minister for Law and Justice and the
Hon'ble Minister for HRD jointly published a guidebook containing the 12 books
in New Delhi.
JUDGES' ANTI-HUMAN TRAFFICKING TRAINING MODULE
The Project produced a programme for
anti-human trafficking training for judges with the active cooperation of the
Maharashtra State Judicial Academy (MJA). The training module was launched
during the valedictory session of the International Conference on Equitable
Access to Justice: Legal Aid and Legal Empowerment in November 2012 in Delhi by
former Chief Justice of India, Hon'ble Shri. Justice Altamas Kabir. This
curriculum was sent to Judicial Academies around the country.
LEGAL SERVICES AUTHORITIES ACT, 1987
Under Article 39A of the
Constitutional Law of India, the Legal Services Authorities Act of 1987 was
adopted in order to offer free and competent legal services to the most
vulnerable members of society:
·
At the national level, there is the National Legal
Services Authority ("NALSA").
·
At the state level, there is a State Legal Services
Authority ("SLSA").
·
District Legal Service Authority (the
"DLSA") at the local level.
Access to justice for the
underprivileged is the successful implementation of social justice. Social
justice is a dynamic tool for alleviating the miseries of the poor, weak,
Dalits, tribals, and other disadvantaged members of society.
Furthermore, Article 39A requires the
State to guarantee that the judicial system promotes justice and that the State
provides free legal assistance so that justice is not denied to a person due to
economic incapacity or other limitations. In Hussainara Khatoon v. Home
Secretary, the Bihar[2], in
this case the Supreme Court ruled that Article 39A has made free legal services
an intrinsic component of reasonable, fair, and just procedure, and that the
right is implied by Article 14.
CONCLUSION
A citizen's right to access justice
is unalienable. Courts are the final chance for disadvantaged populations, and
barriers to accessing courts and justice deprive these people of fundamental
humanity and dignity, making democracy a mirage. Today, the world is discussing
the transfer of geopolitical power from the West to the East, and India is
viewed as a key component in South and Southeast Asia; however, this would be
of little benefit if India is unable to achieve justice, as established in its
Constitution's Preamble. There is a significant difference between the goals
established and the achievements achieved. The lack of legal understanding is
the most significant impediment to the legal aid movement in India. People are
still unaware of their basic rights, which is why the legal aid movement has
yet to fulfil its aim. The lack of legal understanding leads to exploitation
and deprivation of the poor's rights and advantages.
REFERENCES
Ø D.D. Basu, Introduction to the
Constitution of India (Lexis Nexis, 24th edu., 2019).
Ø M P Jain, Indian Constitutional Law (Lexis
Nexis, 8th edn., 2018).
Ø J.N. Pandey, Constitutional Law of
India (Central Law Agency, Allahabad, 59th edn., 2022).
Ø https://lawbhoomi.com/access-to-justice-for-marginalized-people-in-india/
(Last Modified November 20, 2023).
Ø https://blog.ipleaders.in/access-justice-marginalised-section-india/
(Last Modified November 24, 2023).
Ø https://www.legalserviceindia.com/legal/article-1103-access-of-justice-by-marginalized-people-of-india.html
(Last Modified November 25, 2023).
Ø https://www.lawyersclubindia.com/articles/strengthening-access-to-justice-for-marginalized-communities-in-india-challenges-and-solutions-16028.asp
(Last Modified November 28, 2023).
Ø https://www.nluo.ac.in/wp-content/uploads/2023/09/Access-to-Justice-NLUO-Project-Report.pdf
(Last Modified November 29, 2023).
Ø https://www.wbja.nic.in/wbja_adm/files/Project%20on%20Access%20to%20Justice%20for%20Marginalized%20People.pdf
(Last Modified November 30, 2023).
Ø http://burnishedlawjournal.in/wp-content/uploads/2020/11/Access-to-justice-for-marginalized-people-in-India-By-Siddhartha-Kundoo-Puran-Rajpurohit.pdf
(Last Modified December 02, 2023).
Ø https://doj.gov.in/access-to-justice-for-the-marginalized/
(Last Modified December 02, 2023).
Ø https://www.ijlsi.com/paper/access-to-justice-for-marginalized-people-in-india/
(Last Modified December 04, 2023).
Ø http://docs.manupatra.in/newsline/articles/Upload/33CD95C5-634D-4A61-9FF2-78B325C8D041.pdf
(Last Modified December 02, 2023).
Ø https://mslr.pubpub.org/pub/ii7rd56v (Last
Modified December 04, 2023).
Ø http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/law/02._access_to_justice/20._barriers_to_access_to_justice___/et/5645_et_20et.pdf
(Last Modified December 05, 2023).
Ø https://www.atlantis-press.com/proceedings/iclhr-21/125963869
(Last Modified December 02, 2023).
Ø https://journals.library.brandeis.edu/index.php/caste/article/download/452/139
(Last Modified December 04, 2023).