Research Legal Methods
Research Legal Methods
Research Legal Methods
RESEARCH PROJECT
ON
“ACCESS TO JUSTICE”
SUBJECT CODE:
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TABLE OF CONTENTS
DECLARATION…………………………………………………………………………………………… 03
SUPERVISOR’S CERTIFICATE………………………………………………………………………… 04
ACKNOLEDGEMENT……………………………………………………………………………….…… 05
BIBLIOGRAPHY……………………………………………………………………………………….. 18
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DECLARATION
I, ATUL GAURAV, certify that the work embodied in this project work, entitled “ACCESS TO JUSTICE,”
is my own bona-fide work carried out by me under the supervision of Prof. VIDHITA RAKHE of Faculty of
Law, Marwadi University. The matter embodied in this Project has not been submitted for the award of any
other degree/diploma.
I declare that I have faithfully acknowledged, given credit to, and referred to the authors/ research workers
wherever their works have been cited in the text and the body of the project. I further certify that I have not
wilfully lifted some other's work, para, text, data, results, figures etc. reported in the journals, books, magazines,
reports, dissertations, theses, etc., or available at web-sites and included them in this project work and cited as
my own work.
Date:
Place:
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SUPERVISOR’S CERTIFICATE
This is to certify that the work embodied in the accompanying project entitled “ACCESS TO JUSTICE”, has
been carried out entirely by Atul Gaurav under my direct supervision and guidance and that the candidate has
fulfilled the requirements of the regulations laid down for the partial fulfilment of B.A. LL.B Hons. degree
examination in the course Sociology I (Semester I), Faculty of Law, Marwadi University.
VIDHITA RAKHE
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ACKNOWLEDGEMENT
I would like to express my thanks to the people who have helped me most throughout my project, be it directly
or indirectly. I am most grateful to my teacher VIDHITA RAKHE who inspired to do this project by providing
this opportunity.
A special thank of mine goes to my seniors ROUNAK SINHA, YASHI JAIN and RAHUL KUMAR and
classmate MUSKAN KUMARI who helped me out in completing the project, where they all exchanged their
own interesting ideas, and made me realize both the perspectives to the issue and thus made it possible to
complete my project with all accurate information. I wish to thank my parents for their personal support or
attention who inspired me to go my own way.
Last but not the least, I would also extend my appreciation to those who could not be mentioned here but well
played their role to inspire the curtain.
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CHAPTER 01
INTRODUCTION:
The Black’s Law dictionary defines ‘access to justice’ as “the ability within a society to use courts and other
legal institutions effectively to protect one’s rights and pursue claims.” Justice is fundamental to human
existence because it protects the fundamental rights of individuals. The Preamble of Indian Constitution talks
about securing economic, political, and social justice to all citizens of India. A proper judicial infrastructure is a
prerequisite for access to justice and therefore, the constitution lays down for the construction of courts at
various levels for the ease of access to courts to get justice. The Supreme court of India has held that access to
justice is a fundamental right guaranteed to citizens under article 14 and article 21 of the constitution of India.
Indian Constitution, a living legal document provides for various remedies to get access to justice in cases of
violation of fundamental rights and legal rights. Articles 32 lays down the provision to directly approach the
Supreme Court in cases where the fundamental rights have been violated. Whereas, article 226 provides the
provision to approach the High Courts in cases of violation of fundamental and/or legal rights.
The researcher through the final project aims to give an elaborate study of the topic ‘access to justice.’ The final
research paper would be an attempt to address various issues involved in getting access to justice, how the
concept of justice evolved, how justice is still denied, how the scope of justice can be expanded to reach the
marginalised sections of society and so on.
REVIEW OF LITEATURE
On 16th of May, 2022, an article was published on MANUPATRA by the title “Concept of justice under Indian
Constitution” by Amit Pandey and Akshita Tripathi. The article talks about justice in great depths. The authors
say that a civilized society cannot exist without the existence of justice in the administrative system. The
authors presented about the concept of justice in Indian Constitution. The authors talk about three different
kinds of justice which are Social Justice, Economic Justice, and Political Justice and the relationship between
them. In conclusion, the authors said that the enforcement of justice is a catalyst for a better political life of a
country.
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STATEMENT OF PROBLEM
The constitution talks elaborately about access to justice. Great thinkers have argued very well regarding access
to justice. But the ground reality is exactly opposite of what our constitution and great thinkers want. Even after
75 years of independence, citizens are denied justice and given in justice. The concept of access to justice must
be addressed from a different viewpoint. The main problem lies with the education and awareness in the
society. Currently, a large section of people India are illiterate, then, how can they be expected to know the
constitution and the concept of access to justice?
OBJECTIVES
The researcher aims for following objectives through the final research project –
HYPOTHESIS
Justice giving process is a lengthy and time & money consuming process because of which people generally
want to avoid themselves getting involved in matters of courts.
RESEARCH QUESTIONS
What is the aim of access to justice?
What does the constitution say about access to justice?
What has the judiciary done to make justice accessible?
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RESEARCH METHODOLOGY
The methodology opted by the researcher to undertake this project is doctrinal in nature for which the
researcher has used various secondary sources such as books, research papers, articles, etc.
Access to justice is a huge issue that cannot be addressed in a short period of time. Single research on this topic
would be enough to address all the issues surrounding this issue. As a result, the researcher will solely focus on
access to justice in India.
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CHAPTER 02: CONCEPTUAL FRAMEWORK OF JUSTICE
The word ‘justice’ is derived from the French word ‘Jostise’ which means equity, vindication of right,
administration of law. John Rawls defines justice as ‘the virtue of social institutions. 1 Justice means equal
distribution of advantages among people. The inherent nature of people is that they want to be treated as ‘just’
in the society or group. When a group of thieves loot a property, and if there is no equal distribution of looted
property, then a dispute takes place among them. This example proves that even though people are doing a
wrong act (theft in this instance), they want to be treated as ‘just’ and ‘equal.’ Hence, the concept of justice and
equality are inherent to not only human beings but all beings in this world.
When we talk about the concept of justice in our constitution, first of all we
look towards the preamble. Why preamble? Because it gives us an overview of what this voluminous text i.e.,
the constitution is containing about. The preamble of the Indian constitution lays down that “…and to secure to
all its citizens: JUSTICE, social, economic, and political…”2 Even what kind of justice must be secured through
the provisions of constitution has been given clearly in the preamble itself.
There are three kinds of justice mentioned in the preamble, they are –
Social Justice
Economic Justice
Political Justice
In simplest of language, the word ‘social justice’ means justice in terms of distribution of wealth, opportunities,
and privileges within a society.3 The concept of social justice arose in the second half of 19th century during the
Industrial revolution. Definitions of social justice varies from institution to institution. For some, it is fair
allocation/distribution of goods among people for economic, political, and social growth. It may be equality of
status among individuals for other people
It was held by the Supreme court of India in the case of Kesavananda Bharti v. State of Kerala4 that social
justice is a part of basic structure of the constitution. The basic structure of the constitution cannot be amended.
1
Rawls 1971, p.3; Rawls, 1999, p.3
2
The Preamble of Indian Constitution
3
"Social justice". Oxford languages
4
Kesavananda Bharati v. state of Kerala and others, MANU/SC/0445/1973
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Since social justice is the part of basic structure of Indian constitution, it is mandatory for the governments to
frame laws, rules or regulations based upon the principle of social justice.
Social justice means that equal social opportunities are available to every person for personal development of
every person without any discrimination based on race, sex, or caste. Any discrimination on these bases attracts
the violation of article 14 which says that there can be no discrimination only on the basis of race, religion,
caste, colour, etc.5 Moreover, no person can be deprived of social conditions necessary for development just
because there are difference on the basis of religion, caste, colour, etc. It is the duty of the state to frame laws in
this regard and implement them. Social justice can only be enforced in a society where exploitation of man by a
man is not present. The constitution lays down in Article 23 that exploitation in any form must be forbidden.6
Moreover, in the case of S.R. Bommai v. Union of India, the Supreme Court of India held that social justice and
judicial review are two basic features of Indian constitution.7 In the Case of S.R Bommai v. Union of India5, the
apex court held that social justice and judicial review are two basic features of the Indian constitution.
The 2nd kind of justice which the preamble talks about is economic justice. The term economic justice means
that to provide economic opportunity and economic equality. It is always implemented under the umbrella of
social justice. There should exist no inequality among individual on the basis of economic criteria. Just because
an individual earns Rs. 10,000 a month does not disable him form approaching the Supreme Court. Hence,
economic criteria cannot be made basis for giving fundamental rights as well as fundamental duties. The
Directive Principles of State Policy (DPSPs) enshrined in part III of the constitution lays down in article 38 that
that the state shall “the State in particular shall strive to minimise economic inequalities in income and eliminate
inequalities in status, facilities and opportunities not amongst individuals but also amongst groups.”8 It was
inserted through 44th constitutional amendment act, 1978. It inserted section 2 to article 38. The 3rd kind of
justice which the preamble talks about is political justice. William Godwin, in his famous masterpiece Political
Justice (1793), he not only presents the argument that authority is against nature and that social evils exist
because men are not free to act according to reason.9 Since such is the tendency of society, therefore, it leads to
collapse of the institution of political justice. The people want to have the authority over the rest. In the greed of
having the authority or control or power over the rest, they end up doing endless numbers of political injustice
to the rest. Therefore, our constitution has clearly laid down provisions for establishing justice and equality in
5
Article 14 of India constitution.
6
Article 23 of Indian constitution.
7
S.R Bommai V. Union of India, MANU/SC/0444/1994
8
Article 38 of constitution of India; 44th Constitutional Amendment Act, 1978.
9
Political Justice (1793) by William Godwin.
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political matters, for example, 33% reservation is provided to women in local administration in India.10 Apart
from this, the doctrine of separation of powers has also been adopted wherein the legislature, the executive and
the judiciary are made completely and wholly independent of one another and having a system of checks and
balances. Also, the constitution gives the fundamental right to vote to every citizen of India who is 18 or above
and has sound mind and is not disqualified by law, rule, regulations, or any other legislation for the time being
in India.11
Right to access to justice is a fundamental right guaranteed under the constitution of India under articles 14 and
21. Article 14 lays down that the State shall not deny to any person equality before the law or the equal
protection of law within the territory of India.12 According to an article published in The Hindu, about 47
million cases are pending in courts across India! 13 The Indian justice system is indeed overburdened. A State of
the Indian Judiciary Report published in 2019 records that on average, at the district court level, a case remains
pending for five years or more. If the losing side goes up in appeal, then the average time for the case to be
settled may go up to 13 years. This is the situation of our country when justice is not accessible to all the people
of our country. Had it been made accessible to all, even then the problem would have been is it was. Access to
justice is already an issue but the pendency of cases in courts are compounding the issue even more and gravely.
However, few steps have been taken to solve this issue too. Due to covind-19 pandemic, the world was almost
shut down and all the global transactions had come to a pause. Nevertheless, our government made continuous
efforts to use ICT i.e., information and communication technology to make governance accessible to all. In this
direction, under the aegis of Chief Justice S A Bobde and Justice D Y Chandrachud, the judiciary had
introduced the concept of electronic filing. E-filing of cases is a remarkable step in this regard. Instead of people
going to judiciary, judiciary has come to people’s home. This step by the judiciary is very much appreciated.
The concept of online hearing, and e-filing of cases has helped in solving the issue of access to justice, which is
a fundamental right, very much. From physical courts, the concept of virtual courts came into existence.
“Geographical proximity to justice is an important component of access to justice,” says NL Rajah, Senior
10
73rd Constitutional Amendment Act, 1992.
11
Article 326 of Indian constitution,
12
Article 14 of Indian Constitution.
13
EXPLAINED | The clogged state of an Indian Judiciary published by The Hindu on May, 10 2022.
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Advocate, Madras High Court.14 Inability to deliver justice in speedy and affordable manner is the issue since
very long. And therefore, it cannot be address in a short period of time.
India Post independence, India emerged as the State with the longest Constitution in the world, promising
individual rights and liberties. Despite such a promise, there is large population of India that finds it incredibly
hard to access courts to exercise their rights. This is because of the average lawyer rates that cost thousands and
lakhs of rupees an hour. Hypothetically, if you have a broken arm, you would probably head to the hospital to
get immediate help. If you have a persistent cough, you would go to a medical clinic. But what if you have a
legal problem? Hypothetically, what if your landlord sent you an eviction notice or someone at work sued you?
Your response would be to get legal help to solve the above scenarios. But the real question is whether or not
you would be able to afford the legal services you need. Sadly, in India, for many people the answer is a “NO”.
Dealing with a legal problem on your own, can lead to poor health, stress, worse legal outcomes or simply
giving up and accepting injustice. The people who are most severely affected by this are those who are at near
margins of the society. They are the ones that have the fewest resources with which to oppose injustice. Recall
the words of Martin Luther King Jr., “Injustice anywhere is a threat to justice everywhere.” Failing to provide
easy, cheap, and quick justice shakes the belief of our society in the legal system. Being able to stand up against
injustice is important in maintaining our human dignity and strengthening the belief that our legal system isn’t
stacked in favor of the rich and powerful. This is a cornerstone of our society and our democracy.
The Constitution of India through Article 32 and Article 226 promises to provide an effective mechanism and
secure the fundamental right of every person to get access to courts in India. These Articles are a speed track
mechanism and provide quick remedies. A person has the right to directly approach the Supreme Court through
Article 32 without having to go through the hassle of approaching lower courts. 15 The Constitution is thus the
protector and assurer of our fundamental right to get access to courts. Similarly, the High Courts have a power
through Article 226 of the Constitution that ensures that a person can approach the High Court for a
fundamental right violation or any other matter 16. In this regard, Article 32 is restrictive as compared to Article
226, as a person can apply Article 32 only in cases of fundamental right violations. But through Article 226, the
14
Making access to justice a virtual reality published by The Indian Express on May 23, 2020.
15
Article 32, Indian Constitution
16
Article 226, Indian Constitution
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High Courts can be approached for any matter (matters that do not necessarily revolve around fundamental right
violations). Legal aid is a fundamental facilitator to ensure access to courts. The Supreme Court, time and again
has taken progressive measures to promote access to justice and has upheld the Constitution that guarantees this
as a fundamental right. It has done so by applying a twin strategy of loosening the traditional rules of locus
standi and relaxing procedural rules in such cases. In many cases, the courts have taken up the initiative of
appointing commissioners and expert bodies to treat pro bono cases or cases where the party needs
representation. Essentially, the courts use the procedure of Public Interest Litigation to address grievances of the
poor and weaker sections of the society. It is a tool that is used to ventilate public grievances where the society
as a whole, rather than an individual feels aggrieved. 4 Apart from the above, there are several sections of the
Constitution that are interpreted and read along with Article 32 and Article 226. These include: Article 13 which
deals with laws inconsistent with or in derogation of the fundamental rights 17, Article 14 which deals with equal
treatment and equality before the law and Article 21 which refers to the protection of life and personal liberty 18
which directly extends to the right of access to courts and judicial redress in all matters.
LANDMARK JUDGEMENTS: -
The case of Hussainara Khatoon v. Home Secretary, State of Bihar 19 is a case popularly known for the court’s
interpretation of right to speedy trial read into Article 21. The court in this case introduced a legal aid service
program- providing free legal aid to under trials. 20 The case discussed the rights that the prisoners are entitled to
with respect to habeas corpus petitions. It was discovered that a frightening state of affairs prevailed in the
justice system in Bihar. Many men, women and children were locked up behind prison bars for several years
awaiting trial in courts of law. It was disclosed that many of these prisoners were locked up for offences that
were trivial in nature, yet they remained locked up behind prison bars for a period ranging up to ten years or so
because of the trial not being commenced. The court in this case, demanded for immediate release of these
prisoners who were locked up without a trial taking place or sometimes, even without a charge. It was held in
this case that providing free legal help and services to the poor, underprivileged and those in need is an
imperative element under the meaning of “reasonable, fair and just” procedure. Whether a prisoner is guilty of a
crime or is innocent, he/she should be given the opportunity of representation and should be able to avail legal
services that the Constitution guarantees to all its citizens. Another important feature of our Constitution is
17
Article 13, Indian Constitution
18
Article 21, Indian Constitution
19
Hussainara Khatoon v. Home Secretary, State of Bihar, (1979) A.I.R 1369 (India).
20
Hussainara Khatoon v. Home Secretary, State of Bihar, (1979) A.I.R 1369 (India).
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Article 39A which also emphasizes on free legal services. Article 39A essentially states that providing free legal
service is an in-alienable element of the definition of “reasonable, fair and just” procedure. A person who has
economic problems and other disabilities would be deprived of an opportunity of securing justice if there is no
provision of legal aid. Thus, free legal aid is an important ingredient that can be evoked from Article 21 of the
Constitution as a fundamental right. It is a right that is promised to every citizen who is accused of an offence
and is unable to pay for the services of a lawyer due to various reasons that include: poverty, indigence, or
incommunicado situation. The State has the responsibility to provide legal help to a person when the
circumstances show that the person is unable to afford the help. There is an urgent need to introduce a vital,
strong, and comprehensive legal aid and legal services program that is impressed upon the Government of India
as well as the State governments, to ensure that every person has the provision of getting access to courts. The
State cannot get away and not comply with its obligation that the Constitution sets on it to provide services to
the ones who need it by providing financial and legal help.
Another case that stands out in the discussion about access to courts, is the case of Khatri v. State of Bihar II
also known as the Bhagalpur blinding case. The case started off by several petitioners who had filed writ
petitions at the Supreme Court using Article 32 for the enforcement of their fundamental rights under Article 21
of the Constitution. They complained about the fact that the police had blinded them at the police station while
they were held under custody. The case emphasized on the constitutional obligation of providing legal services
to the poor and accused. The court emphasized on the State governments obligation that the Constitution
mandates to provide free legal services to the ones who cannot afford it. A trial held without offering legal aid
to an indigent accused at state cost will be vitiated and conviction will be set aside. Also, free legal services to
the needy and poor should be delivered as they form as essential part of “reasonable, fair and just procedure.”
Legal aid is a fundamental part of providing access to courts. The moment the accused is produced before a
magistrate, this right of indigent arises. The accused then gets the opportunity to make an application for bail
and thereby obtain a release which is then followed by seeking legal assistance and representation. The accused
has the right to claim free legal aid in a situation that he is sentenced by the court and wishes to appeal against
this decision. The magistrate and judge also have the legal obligation, according to the court to inform an
accused about the provision of seeking legal services and engaging a lawyer if it is evident that the accused is
not in a position to afford legal services on account of his economic conditions, poverty, or indigence. The State
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is under the responsibility to provide this help. The Court took the view that the right to free legal services
would be illusory for the indigent accused unless the trial judge informs him of such right.21
21
Khatri V. State of Bihar II, (1981) SCC (1) 627 (India).
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CHAPTER 04: CONLUSION AND SUGGESTIONS
The Constitution and Courts belong to the people of India. A court like any other institution in a democracy is
for the people and courts to survive on the strength of public trust and confidence. The judiciary system of India
is often plagued with longstanding legal procedures. Too often, people see the legal system and the law as
inaccessible and out of reach. They presume it to be like a castle with high walls and doors. Anybody who is not
an insider and who does not have the resources, cannot reach inside the castle. This needs to change. Everybody
should know where to turn to when they have a legal problem and they should not be afraid to do so. The State
has an obligation to make sure that the public believes that the justice system is fair and we can help achieve
this by demystifying the law, by broadening who provides legal services and by making those services more
affordable. As, a modern welfare State cannot with any justification sell the dispensation of justice at a price.22
One way to make courts more accessible to the public is the use of technology and going digital is a
solution to avoid tedious legal tasks. The digitalized manner of registering complaints and creating
accountability is very important in the present generation. People can avoid hassle and save time by
filling an FIR or civil case or an RTI application, consumer grievance or application for a license or any
other application through online mode. In this regard, the government of India has launched a new
website known as Integrated Case Management Information System (ICMIS), which enables filling a
case digitally.
Another way to make courts more accessible is ensuring that the judiciary system is more open to those
who participate in the judicial process. Jurors, lawyers, witnesses, and observers are to be treated with
dignity and respect through the legal process. Website for providing the public with information about
courts and its rules, and schedules, procedures, and forms, judicial orders should be available through
properly judiciary operated public access system. Courts form which is required to be filled by common
man should be made simpler and clear. Facilities in the court should be designed to provide easier access
to differently-abled persons. Information about court cases should be easily accessible which would
enable people with ready information about court cases and the work of the courts. With continued effort
from the judicial system and the government, courts can be made more accessible for everyone. Special
22
Sheela Barse vs Union of India, (1986) 3 SCC 632.
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courts can be constituted to exclusively deal with criminal cases involving public servants and elected
representatives.
The union government has launched some programmed to address the issue of access to and pendency of justice
as follows –
An e-interface platform that aims to empower people through pre-litigation advice for rightfully claiming
their entitlements and for timely redressal of their difficulties. It seeks to connect the poor and marginalized
sections of society, through a dedicated pool of Panel Lawyers via video conferencing/telephonic facilities
available at Common Service Centres (CSCs) and directly through Tele-Law Mobile App.
Nyaya Bandhu (Pro Bono Legal Services) aims to create a pan India framework for dispensation of pro
bono legal services. Under it Advocates interested to volunteer their time and services register on the Nyaya
Bandhu Mobile App (available in Android/iOS/UMANG platform) and provide legal assistance to the
persons eligible to avail free legal aid under Section 12 of Legal Services Authorities (LSA) Act, 1987 and
registered on the Nyaya Bandhu App.
Pan India Legal Literacy and Legal Awareness aims to enable the vulnerable sections of society to have
access to information about their legal rights, entitlements and creating better legal awareness so as to make
justice delivery system citizen-centric.
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BIBLIOGRAPHY
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