The 
173issue of accessing justice is often never far from discussions of justice within social and political arrangements. The imagination of justice inside a political community tends to bring up an obligation to imagine modes of making it available to the members of that community.
Access to justice, of course, is a two-way relation: first, a legitimate political authority has to ensure justice arrives to its subjects, that is, make it accessible through stable institutional means; and, second, the subjects should be able to revise prevailing notions of justice, that is, justice has to make itself accessible to their experiences.
Justice, in the lines so far, has been restricted to its scope in modern political arrangements. Notions of justice can, and indeed do, prevail outside the state-mandated spheres of justice. Most notably, in the realms of what we consider civil society, where different religious and ethnic communities can be seen to subscribe to different notions of justice. For instance, some communities embrace the ideal of vegetarianism as they view the killing of animals for human consumption unethical. In addition to heterogeneous ideals of justice, socially privileged identities are often a source of cultural harm and injustice for those who inhabit the lower ranked ones. And, the idea of justice can even become manifest in other realms as well: Does the memorial do justice to the memory of the political leader? Did the translator do justice to the original story? In other words, the scope of justice is greater than the legal and other institutional instruments devised to manage its execution. This chapter, however, keeps its focus on legally mandated justice and the institution in charge of securing it in the lives of the citizens in India.
Modern democratic states have radicalised the issue of access to justice. Their conceptions of legal, 174political, and social morality, and their application in different spheres of human activity, are to extend, in theory, at least, equally to all citizens. Unlike in the past, when polities distinguished between different social groups within their territory, and felt comfortable in arriving at differentiated notions of justice in accordance with those social differences, modern democracies are agreed that all of their citizens enjoy similar rights and freedoms. These democratic states, unlike ancient Greece, for example, will not withhold the legal, political, and social security extended to a class of people called citizens from another class of people called slaves. Nor will they entertain jurisprudence rooted in the metaphysics of caste or gender.
In the remaining sections of this chapter, I briefly discuss the two dimensions of the issue of accessing justice: the design of the institutions that make justice accessible and the interface of state-mandated justice with the plurality of existing socio-legal moralities. Next, I delineate the chief components of judicial infrastructure and the institutional ecology surrounding it. This section draws on relevant data that DAKSH’s Access to Justice Survey (ATJS) has made available. The subsequent section offers a brief account of how ‘access to justice’ came to acquire discursive prominence in the 1970s and how Indian legal institutions had been actively aware of the value of making justice accessible even several decades prior to this discussion. The chapter concludes with a short discussion on how deliberations of access to justice need to think beyond the realm of procedural justice.
Two Dimensions of Access to Justice
Since modern democracies rule in the name of ‘the people’, and claim legitimacy from that very fact, access to justice becomes a charged, open-ended political adventure. In order to stay responsive to evolving institutional realities, they will need to be open-ended both in their conceptions of justice and in their instruments of delivering it.
Institutional Design
How precisely is justice to be delivered? In other words, what are the institutional mechanisms most suited to deliver justice? Democracies vary richly on this question. Their court systems, which deliberate and decide on a variety of cases, are structured differently with respect to the distribution of authority amongst their internal tiers, the appointment of judges, the requirements of legal training, among others. Needless to add, historical, cultural, economic, and demographic factors and the federal characteristics of the polity, all play a role in determining how states choose to craft a legal system most appropriate for the delivery of justice within their territory.
A close institutional ally in this regard is the police system that enforces legally stipulated notions of public order and actively assists in the management of judicial requirements pertaining to the redressal of breaches in criminal or civil law.
While the judiciary is the pre-eminent institution for the management of justice in the country, the legislature often introduces statutes, both at the centre and at the state, either as a result of self-initiated discussions or as a response to demands from its citizens, which revise the scope of judicial responsibilities accordingly. The bureaucracy, which issues numerous rules and regulations, in the domain of administrative law, to regulate the interactions of the citizens in relation to various public services, is also an institutional neighbour of the judiciary.
The political morality of democratic states is frequently challenged and its scope and conceptual content redefined by social and economic developments. As T.H. Marshall’s classic Citizenship and Social Class (1950) showed, citizenship rights did not arrive in modern England all at once. Civil rights that posited the idea of rule of law and the equality of citizens under it arrived in the late 17th century. Political rights, which were earlier restricted to propertied men, conferred voting rights to educated men in the early 19th century (working-class men got the right to vote in 1866 and women got it in 1928). Social rights of welfare that held that all citizens were entitled to a modicum of social and economic well being came last.
Marshall’s important account remains one of the gradual widening of the sphere of citizenship eligibility and enlargement of the contents of liberal democracy. An account of how citizenship arrived in India will have to contend with its encounters with the heterogeneous conceptions of justice prevalent in India in both the colonial era and the post-independence era. The British government addressed its Indian subjects with the language of citizenship in the 19th century even when they were not citizens in the full sense of the term as we know it.1 After independence, India’s Constitution extended full citizenship status to its people.
The liberal conception of citizens as individuals with equal rights is enshrined in constitutional morality but is not widely shared among Indians. A source of much political exasperation — modern-minded social activists have long wanted the moral understandings on the ground to be aligned in the direction of constitutional morality. Diversity in socio-legal epistemologies exists and poses significant dilemmas for enthusiasts of liberal democracy. Indeed, in recognition of this fact, the Indian government retained a modified model of village panchayat in matters of civil jurisdiction in villages in the early decades after independence. Recent discussions of legal pluralism have also sought to find parallel space for conceptions of justice outside the frame of constitutional liberalism.
Discussions of access to justice, in both senses of the term, are rarely ever purely theoretical; they strive to make it wider, easier, and surer. The work required for this very necessary task can be appreciated from two separate vantage points: the infrastructure of the judicial system and the institutional ecology that surrounds it.
Judicial infrastructure includes all the personnel involved in the work of administering justice: the judges, the court staff, the lawyers, and the physical infrastructure such as buildings, court rooms, office space, storeroom and record keeping facilities, electricity and water supply, technical amenities such as phones, computers, and recording equipment and the generation of various paper documents, including affidavits, copies of judgment, and the like. Needless to specify, budgetary allocations for justice-related expenditure is an integral part of the judicial infrastructure.
Each of these items of infrastructure will need to be appreciated in detail and in relation to its context of use. An ideal judge, for instance, will have a sound knowledge of law and jurisprudence and high linguistic proficiency, stay free of social prejudice or partisanship, remain impervious to extraneous pressure, and embrace good work habits. In addition, the number of judges will have to be adequate for handling the current and prospective volume of cases.
176According to the ATJS, 62 per cent of all litigants shared the view that the judge was slow to pass orders in their case, and 49.8 per cent also felt that there were not enough judges.
The matter of judicial infrastructure, therefore, is clearly is not a static one; it must be able to respond and adapt to the changes in surrounding context. Similarly, the court buildings and the technical equipment inside should be able to manage the ever-evolving needs of the courts. Other infrastructural factors like the location of the court and its surrounding transport facilities are often deciding factors in the litigants’ decision to approach the courts: the farther the location, the more burdensome and avoidable the latter will seem; similarly, the more affordable and more regular the available transport facilities, the greater the ease of interaction with the courts.
Even the most socially and economically appropriate justice system will require, for its ideal functioning, symbiotic support from agencies outside it.
The police department has to be adequately and appropriately staffed in recording first information reports (FIRs) or in delivering court summons, or in coordinating bail-related work, for instance. It is common knowledge that political and other kinds of ‘influence’ often interferes with the work of the police. It could result in, for instance, incorrect FIRs being recorded by police officers not eligible to undertake that task or in the tampering of evidence for the courts.
The various statutes and rules framed by the legislature and the bureaucracy, which decisively influence the experience of citizenship, are also key components of the institutional ecology surrounding the judiciary.
More crucially, the preparedness of litigants is a hugely relevant factor in considering the issue of access to justice. The ordinary presumptions that litigants have basic legal literacy, or can locate professional legal help when necessary, or have the financial wherewithal to file a case and see it through, do not generally obtain in India.
While the fear of protracted delays in court procedure does deter citizens from approaching courts, making them instead seek settlement outside courts or reconcile with a less than ideal situation, the very institution of the court can appear forbidding and distant to those who feel socially helpless and vulnerable. Put differently, the economically and socially vulnerable citizens, who are likely to benefit the most from legal security, are the least likely to approach the justice system.
The ATJS draws necessary attention to the powerful part played by gender in the realities of litigation. A small section of the surveyed litigants (21 per cent) in civil cases tended to be female. Is this because households tend to file cases in the names of male members? Or, does this show that women tend to be less confident about entering the process of litigation? This is a subject that needs closer investigation.
Activist groups in civil society have attempted to bring legal awareness to tribals, Dalits, women, slum dwellers, workers in the informal economy, such as migrant workers, domestic servants, and street vendors, and other vulnerable social constituencies and encourage them to interact with the courts as equal citizens whenever relevant occasions arise. Human rights and other social activist lawyer groups also offer affordable legal services to the poor.
177Historicising ‘Access to Justice’
Legal scholars have observed that something like an ‘access to justice’ movement was witnessed in global discussions of legal reform in the 1970s. In the multi-volume Access to Justice published between 1978 and 1979, Mauro Cappelletti identified three phases in this movement.2 In the first wave, the focus was on reforming institutions to ensure affordable and swifter legal services to the poor. In the next phase, in response to the complexity of demands on the judicial system, especially with the rise of ‘diffuse interests’ such as those of consumers and environmentalists, new legal phenomena emerged: ‘class action, public interest action and the various governmental solutions, such as the introduction of the consumer ombudsman’.3 The final phase saw discussions of the value of relatively informal dispute resolving institutions alongside the formal courts.
This widely shared historical account of the global emergence and circulation of the term ‘access to justice’, occludes other, much older, efforts in countries like India, for instance, that have sought to make justice accessible through the process of judicial review, to accommodate plural conceptions of justice in matters of civil law, and to make court procedure economically more affordable.
In the decades following independence, the Supreme Court of India has emerged as a close arbiter of the constitutionality of the laws and regulations created by the legislature and the bureaucracy. This process of judicial review has allowed it on numerous occasions to liberally interpret the provision of rights in the Constitution and also to protect the latter’s basic structure from being undermined.4 (Pratap Bhanu Mehta, the political scientist, argues that the Supreme Court’s interest in evolving a rights-based jurisprudence is less led by a civil liberties understanding of rights and more by the framework set by the Directive Principles of State Policy.5)
Arrived at after extensive debates and comparative consultations with constitutions from across the world, the Indian Constitution opted for universal democratic citizenship and guaranteed fundamental rights and freedoms to all Indians. This was a radical decision, undoubtedly, as it announced the state’s official disregard for the variety of social hierarchies in the country. In addition, it validated secular, liberal morality as the philosophical touchstone of justice.
The simultaneous availability of religion-based personal law in civil matters, however, is a clear instance of the Indian state’s radical sensitivity to how individuals and communities might want justice to become accessible within their conceptions of the good life and not within universal principles expected to hold good for all citizens and communities.
The option of taking recourse to personal religious law in civil matters for various religious communities is testimony to the state’s commitment to enable its citizens to access justice in civil matters in terms of a religious philosophy they consider legitimate. Occasionally, frictions arise, and show, importantly, how difficult the question of accessing justice is. The infamous Shah Bano episode, where a Muslim woman’s rights of alimony were upheld by the Supreme Court but turned down by the Indian Parliament, is one example. And, more recently, the Rajasthan High Court deemed Santhara, the Jain custom of fasting to death in old age, as an act of suicide and a punishable offence, leading to wide protests from the Jain community.
In the initial years following India’s independence, serious efforts were made to retain the panchayat at the village level. This was done with regard for the older traditions of the management 178of justice in villages and also because that culture of justice was familiar to local villagers. A rich tradition of anthropological scholarship exists on legal deliberations in the panchayats in villages and among caste panchayats.6
As recently as the mid-1980s, Upendra Baxi distinguished between ‘the State-Legal System’ and ‘the Non-State Legal System’. The latter, which included panchayats, deliberative forums among the tribals, and state-created institutions such as the Lok Adalats (people’s courts), had to be taken seriously as spheres of justice.7
The discussion above illustrates how our justice system has tried to acknowledge the extraordinary cultural diversity of India and work with diverse jurisprudential logics.
A discussion of non-state legal systems in India ought to also recognise the variety of informal dispute settlements that occur outside the mediation of the official justice system, ranging from on-the-spot resolutions of motor accidents to rank extortionism to neighbourhood mediation in resolving a host of civil, and even criminal, cases. The informal social arenas display a complex array of conceptions of justice and injustice.
The judicial system has been cognisant of keeping the costs of court formalities affordable. Since the early 19th century, legal discussions have emphasised that court fees be abolished or kept minimal as high court fees can deter the economically weak litigants from approaching the courts. Similarly, after independence, the 14th and the 54th Reports of the Law Commission of India have also earnestly recommend that the court fees be reduced. Reiterating the rationale of the previous discussions, the Law Commission’s 189th Report on the Revision of the Court Fees Structure dismisses the argument that higher court fees will dissuade ‘vexatious or frivolous’ litigants and asked that the fee revision be done to adjust for the depreciation of the rupee.8
The more prohibitive costs, however, tend to involve the lawyers’ fees and costs related to travel, accommodation, and other expenses involved in visiting the courts. Several reports of the Law Commission have affirmed the need to lower the costs of litigation and devise swifter means of disposing cases.9
DAKSH’s ATJS clearly demonstrates that the higher costs of litigation at the High Courts deter low income litigants from opting for appeal at the High Court. This ought to be a matter of deep concern and oblige the government to think of means of making the costs of accessing the higher costs more affordable.
Free legal aid is now deemed part of Article 21 of the Indian Constitution that secures the protection of life and personal liberty of individual citizens. Introduced in the Constitution (42nd Amendment) Act, 1976, Article 39-A provides that ‘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’ (emphasis mine).
In stark contrast to the noble intent of this amendment, the actual number of litigants availing this facility of free legal aid remains small. In DAKSH’s ATJS, only 90 out of the total number of surveyed civil litigants had availed of lawyers provided by the court through legal services authorities. Considering that one-third of the respondents earned less than Rs 1,00,000 per year, it is clear that the courts are not doing enough in making free legal assistance more widely available.
179Facts testifying to the mammoth backlogs of cases in the courts and the inordinate delays in court decisions are familiar refrains in both socio-legal scholarship as well as popular writings on the Indian judiciary.
According to DAKSH’s ATJS, most litigants, at the time of filing the case, expect their cases to be resolved within a much shorter time than it actually takes. Fifty-five per cent and sixty-seven per cent of litigants in civil and criminal cases, respectively, expected their cases to be solved within a year’s time. Twenty-one per cent of the litigants in criminal cases admitted to having spent more time in jail than the prescribed punishment for the offence. The impact of facts such as these for the subsequent interactions of the litigants with the court can be easily guessed.
A cognisance of these realities of delay has led to the creation of administrative tribunals, fast-track courts, family courts, consumer courts, labour courts, among other alternate dispute resolution (ADR) methods, where the procedure is less complex and decisions arrived at faster. The high volume of cases that pass through these courts do serve to lower the burden on the regular courts.
Legal scholars have tended not to accept the ADR measures as the most adequate response, arguing that the poor should be entitled to the same security of legal procedure as any other who interacts with the regular courts.10
DAKSH’s ATJS offers compelling evidence that the ADR methods are not succeeding at their objective: about one-third of the respondents with civil cases (33 per cent) had used ADR methods before approaching the courts. Also, an overwhelming 96.3 per cent of the surveyed litigants who had opted for the ADR methods earned less than Rs 3,00,000 a year (33 per cent of them earned less than a lakh). It is clear that those who can afford it prefer to approach the regular courts. This proves yet again that other measures will have to be found to make the regular courts more accessible to the poor.
Understanding access to justice as affordable and quick means of settling cases in the courts is to keep the focus on the technicalities of legal procedure. Since justice is accessed within a wider institutional ecology, such a technical focus detracts from the wider expectations of the state’s commitments to justice.
While the state actively thinks about making the judiciary more approachable, and more affordable, as an institution, it must give active thought to how the present parameters of justice might themselves harbour limitations. Social movements of various kinds have often aided the state in enlarging its conceptions of justice. The Forest Rights Act, which recognises that ‘historical injustice’ has been done to the tribals and wishes to secure autonomy with respect to their livelihoods, is an inspiring example in this regard.
If justice is viewed, along with Michael Walzer,11 as seeking the end of domination, is not the state obliged to identify and remove sources of domination that subvert the state’s pursuit of equality? The Indian state has of course been at work in this regard. Consider the legal ceiling on the ownership of agricultural land. Or, the greater taxation rates for higher income groups. Or, the recently mandated equality in property inheritance rights for Hindu women. As the numerous social struggles, large and small, remind us, the need for the state to enhance the scope of substantive democracy is usually present.
180An active sensitivity to the unequal distribution of self-confidence among individuals and communities caused by deep social and economic inequalities is indispensable for enhancing the access to justice. Indians do not share similar levels of faith in the legal system nor view themselves primarily as citizens with legitimate claims on the state to provide them basic cultural, social, and economic security.
While the state-regulated education system does seek to provide political education to its citizens and make them aware of their rights, the continuing sources of social humiliation and prejudice, be it gender, caste, tribe, minority religion, or class, can decisively undermine their sense of being competent in their interactions with the state. In a country where the number of people with little or no formal education and who work in the informal economy is so large, the state’s responsibility in cultivating in them the identity of a citizen with a sense of entitlement to social and economic security and justice is of a great magnitude.
Besides the state, in India, social movements and activist groups have done much to awaken cultural and political confidence among women, farmers, tribal, and minority caste and religious communities. In addition, the market’s aggressive promotion of the image of the citizen as consumer is also playing a role in making individuals aware of their rights. In this regard, the experience of Western countries has been unhappy: citizens are seen being more assertive of their private rights as consumers than as individuals seeking to participate in the advancement of democracy. It remains to be seen how the Indian experience will turn out.
But as newer inequalities surface and harden, the state will have to respond in dynamic ways. For example, in the matter of high chances of exposure to air and water pollution among the urban poor, the state needs to devise creative solutions to check the problem. The right to education is an encouraging example of the state trying to ensure that children from modest economic backgrounds will also access good quality education in private schools.
Finding better means of accessing justice is more likely to be a meaningful exercise if trust in the impartiality and neutrality of judicial institutions, and more broadly, in the workings of the state itself, is widespread. If popular cinema is an index of this trust, the findings in this regard will be unhappy. The legal and the political systems are routinely represented as pliable or indifferent to social urgency. Jokes about how the rich and the influential never go to jail, even when their crimes are colossal, are plenty.
Conclusion
In the country’s pursuit of democracy, the judiciary has emerged as an exalted institution for securing the ideals of citizenship and fostering a socially just milieu. The moral and political relevance of making justice accessible could not be more obvious. An alertness to the factors that undermine citizens’ access to justice and a keenness towards overcoming those factors, needless to add, become essential obligations for the judiciary.
Notes
1. Niraja Gopal Jayal. 2013. Citizenship and Its Discontents: An Indian History. New Delhi: Permanent Black.
2. Estelle Hurter. 2011. ‘Access to Justice: To Dream the Impossible Dream?’, The Comparative and International Law Journal of Southern Africa, 44(3): 408–427.
3. Hurter, ‘Access to Justice’, p. 411.
4. 181S.P. Sathe. 2002. Judicial Activism in India: Transgressing Borders and Enforcing Limits. New Delhi: Oxford University Press.
5. Pratap Bhanu Mehta. 2005. ‘India’s Judiciary: The Promise of Uncertainty’, in Devesh Kapur and Pratap Bhanu Mehta (eds), Public Institutions in India: Performance and Design, pp. 157–193. New Delhi: Oxford University Press.
6. See, for instance, M.N. Srinivas. 1962. Caste in Modern India and Other Essays. Bombay: Asia Publications, and Bernard Cohn. 1965. ‘Anthropological Notes on Disputes and Law in India’, American Anthropologist, 67(6): 82–122.
7. Upendra Baxi. 1986. Towards a Sociology of Indian Law. New Delhi: Satvahan Publications.
8. Law Commission of India. 2004. ‘189th Report on Revision of Court Fees Structure’, available online at at http://lawcommissionofindia.nic.in/reports/189th%20Report%20on%20Revison%20of%20Court%20fee.pdf (accessed on 1 April 2016).
9. For example, Report No. 77: Delay and Arrears in Trial Courts (1979), Report No. 124: The High Court Arrears: A Fresh Look (1988), Report No. 128: Cost of Litigation, and Report 221: Need for Speedy Justice: Some Suggestions (2009).
10. Marc Galanter and Jayanth K. Krishnan. 2004. ‘“Bread for the Poor”: Access to Justice and the Rights of the Needy in India’, Hastings Law Journal, 55(4): 789–834.
11. Michael Walzer. 1984. Spheres of Justice: A Defence of Pluralism and Equality. New York: Basic Books.