Dinesh Kamath's Editorial '‘Access to Justice’ is fundamental right' that was published in Newsband

‘Access to Justice’ is fundamental right

“Access to justice” is a part of the fundamental right to life and personal liberty under Article 21 of the Constitution. Given this, a step that places hurdles in the path to access justice is a denial of this right.

The question of accessibility to justice is not just a matter of the physical location of the courts but the very system that governs the justice system. Even if courts are easily accessible, they remain out of reach for the majority of citizens because of the circuitous nature of the conduct of trials, the expense involved, and the long delays.

If one really wishes to know how justice is administered in a country, one does not question the ­ policemen, the lawyers, the judges or the protective members of the middle class. One goes to the unprotected —those precisely who need the law’s protection most — and listens to their testimony. This is a message that is tailor-made for India, where the laws routinely fail to protect the “unprotected.”

Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.

A number of delivery models for legal aid have emerged, including duty lawyers, community legal clinics and the payment of lawyers to deal with cases for individuals who are entitled to legal aid.

Legal aid is essential to guaranteeing equal access to justice for all. Especially for citizens who do not have sufficient financial means, the provision of legal aid to clients by governments will increase the likelihood, within court proceedings, of being assisted by legal professionals for free (or at a lower cost) or of receiving financial aid.

Article 39A of the Constitution of India, provides for equal justice and free legal aid:

The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

This Article emphasises that free legal service is an inalienable element of 'reasonable, fair and just' procedure, for without it a person suffering from economic or other disabilities would be deprived of the opportunity for securing justice.

In the civil side, Order XXXIII. R.18 of the Code of Civil Procedure 1908 provided that the state and central governments may make supplementary provisions as it thinks fit for providing free legal services to those who have been permitted to sue as an indigent person. The Legal Services Authorities Act, 1987 made drastic changes in the field of legal services. It is an Act to constitute legal services authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis of equal opportunity.