Indian Judiciary and Access to Justice: An Appraisal of Approaches

Aparna Chandra


Evaluating page183the judiciary’s role in facilitating access to justice should begin with a prior question: how should the judiciary conceptualise justice, and access thereto? This normative benchmark will set the standard against which judicial practice can be evaluated.

A convenient starting point into this inquiry is the Constitution. Accordingly, in this chapter, I first draw upon the Indian Constitution to understand the constitutional ideal of justice to which access is needed. Next, I explore its implications for how the judiciary should — normatively — understand its role in facilitating access to justice. Based on these conceptual segments, I then evaluate trends and approaches in judicial reform aimed at facilitating access, to understand the extent to which they meet, or fall short of, the constitutional conception of access to justice.

Constitutional Ideals of Justice

Justice is the first virtue that the Constitution seeks to secure for the people of India.1 The Preamble understands justice as having social, economic, and political dimensions. This all-encompassing notion of justice is reiterated in Article 38(1), which requires that the state strive to secure and protect ‘a social order in which justice, social, economic and political, shall inform all the institutions of the national life.’

The constitutional set-up therefore speaks not only of juridical or legal justice, but a social order based on just relations in the various domains of human life — in the political sphere, the social and economic spheres. In fact, continuing injustice in the social and economic spheres was seen by Ambedkar as the greatest threat to the Constitution’s page184very survival.2 For this reason, transformation of the unjust social reality into a just social order through the device of the Constitution, was at the core of the constitutional project.3

To operationalise its vision of justice, the Constitution recognises and guarantees various fundamental rights which are aimed at protecting and promoting political justice, along with creating the conditions for the realisation of social and economic justice. The Constitution also directs the state to secure various aspects of socio-economic justice through binding but judicially non-enforceable directive principles which are ‘fundamental in the governance of the country’.4

Access to Justice and the Judiciary

If the Constitution views justice on this broad canvas of creating a just social order, what is the role of the judiciary in securing justice and/or enabling access to justice?

The framers of the Constitution envisaged the judiciary as being central to the project of securing social justice. Ambedkar, for example, called Article 32 — the power to move the Supreme Court for enforcement of fundamental rights — the soul of the Constitution.5 As a first step then, the judicial role in the constitutional vision of justice is that of enforcing fundamental rights. But that is not all. Fundamental rights are open ended entitlements, the contents of which are filled in through interpretation, including by the judiciary.6 If rights are tools for securing justice, then the judiciary can further access to justice by fashioning rights into effective tools for securing socio-economic and political justice.7

In particular, the articulation of norms which enable access to basic human needs should be understood as a first step in the justice project. Where legal or social norms limit the ability of the most marginalised and disempowered groups to meet their basic needs, access to justice in any sphere of human life recedes to the background in the struggle for survival.8 Thus securing socio-economic entitlements to basic human needs, and converting these entitlements from paper norms to lived realities, has to be the starting point for creating a just social order.

Rights and entitlements not only help in securing basic needs, but can also signal to society as a whole, what is acceptable behaviour and what behaviour is subject of legitimate criticism.9 Take, for example, the Vishaka case.10 This decision did not end the practice of sexual harassment. But, by understanding sexual harassment as a violation of the right to life with dignity, it served the expressive function of de-normalising and de-legitimating sexual harassment, and provided women, individually and collectively, with a powerful vocabulary to understand and challenge the status quo in public discourse.11 Further, it enabled women who face sexual harassment to call upon the state to recognise such behaviour as wrong, and remedy the behaviour.12

The judiciary also plays an important role in securing justice by providing fora for the enforcement of such rights, or for remedies against their violation. This corrective aspect of the judicial function aids in promoting social justice and enables social empowerment and transformation through law by limiting the culture of impunity for practices that result in disempowerment of large sections of the population, and by vindicating rights, particularly of the disempowered. Effective access to justice therefore entails the ability to call upon the state to use its power to ensure accountability for practices of disempowerment. Thus, access to justice should not be viewed only as a tool to provide justice in individual cases, ‘but also to attack page185the dynamics of exclusion’13 by using the law’s disapproval and sanction of certain practices as the impetus towards social change. Access to justice is therefore intrinsically tied to the vision of law as containing an emancipatory potential.14

As an example, access to corrective justice is crucial for ensuring that victims of domestic violence are able to call upon the state to use its resources to ensure their physical safety, to secure their means of livelihood, and to remedy past violence, in a social setting which largely condones practices of domestic violence. Case by case, the law becomes a tool for challenging the status quo on power relations between domestic partners, both by intervention in specific cases, and by signalling to the larger community about legally acceptable behaviour. Therefore, in a society marked by violence, discrimination, and exclusion, corrective justice facilitates empowerment, accountability, and an ending of impunity for the violation of constitutional and statutory entitlements.

In sum, then, constitutional justice has to be understood as comprising both the distributive aspects of justice (including the distribution of resources, as well as of rights and entitlements), as well as its corrective aspects. This implies that for the judiciary itself, the concept of justice should not be limited to juridical justice — that is justice through courts. Rather, juridical justice should be understood as a means towards achieving the end of social justice. As such the mandate of the judiciary should be the creation of a legal system which enables the realisation of social justice through substantive norms, procedural rules, and remedial functions. In fact, Article 39-A speaks directly to this issue, and mandates the state to secure ‘that the operation of the legal system promotes justice, on a basis of equal opportunity’.

As such, an element of access to justice is the creation of an accessible legal system, equipped with substantive rights that are protected and promoted effectively and efficiently through law. Note the focus of Article 39-A on the ‘operation of a legal system that promotes justice’. Courts are one amongst various actors in the legal system. In the criminal justice system, for example, the legislature, the police, and prison authorities, amongst others are essential components of the legal apparatus. Criminal courts operate in this ecosystem and exercise some degree of authority and control over the system as a whole. Access to an effective and efficient criminal justice system cannot therefore be understood only as access to criminal courts, or to representation within the court. For it to be meaningful for both the victim and the accused, access to criminal justice should imply access to a responsive, rights respecting, and accountable system as a whole. The judiciary has an important role to play here in ensuring that legal norms articulated through the judiciary support this endeavour, and that the judiciary is itself accessible (both normatively and physically) as a forum for holding other parts of the legal system accountable.

Courts are not only spaces where rights are protected or enforced; as institutions of the state charged with coercive power, they may also be spaces where rights are violated. Access to justice, therefore, cannot be limited to access to the courts themselves, in the sense of being able to enter court to air and resolve grievances, but should also be understood as including access to just treatment in courts, and access to just outcomes from courts.15 As such, the common tendency to conflate access to justice with access to courts, is misplaced. Access to justice requires, first and foremost, the creation of substantive rights, and second, all that is required to effectively remedy any violation of the right in a manner that is itself just. Access to courts is an essential but not the only component of access to justice.

page186In sum, then, the role of the judiciary in securing access to justice should include:

1. Articulating norms that advance the constitutional ideal of a just social order, for example, by articulating the right to food as part of the right to life with dignity.16

2. Articulating norms that make other wings of the state more accessible and accountable, for example, by interpreting a provision that confers administrative discretion as requiring that a person has a right to be heard before an adverse order is passed against her by any state authority.17

3. Articulating norms that increase the accountability/limit the impunity of state actors, for example, through replacing the concept of sovereign immunity with that of constitutional torts.18

4. Articulating procedural rules that facilitate effective and equal access to remedial measures through courts for the violation of rights, for example, relaxed locus standi requirements for approaching courts.19

5. Facilitating the creation of a court system that itself treats litigants justly, and strives towards just outcomes, by, for example, the requirement of legal aid for an indigent accused to facilitate a fair trial.20

Based on this constitutional and conceptual overview, the following definition of access to justice captures how the judiciary should understand the concept: Access to justice implies equal and effective access to a system of substantive rights that are geared towards social, economic, and political justice, and to remedies for violations of such rights in a manner that is both procedurally fair and substantively just.

Evaluating Judicial Approaches to Access to Justice

The Supreme Court of India has itself recognised this expanded conception of Access to Justice.21 It has also recognised that securing access to justice is not limited to removing barriers to accessing courts, though of course, this is an important element.22 However, as I argue below, the focus of access to justice measures has largely been on access to courts. Within this framework, barriers to access to justice are viewed as a problem of lack of resources which causes a mismatch between demand and supply — there is too much demand for judicial services, but its supply is limited. The solution is to provide the resources to resolve the mismatch by constricting demand, or by increasing supply. I will argue that not only is this approach partial and incomplete, but also it can often be counter-productive to the broader vision of access to justice set out above.

Let us begin by looking at some typical examples of judicial reform measures undertaken by the judiciary and associated institutions like Legal Services Authorities, for promoting access to justice:23

1. The provision of legal aid, channelled through a network of legal services authorities; and increasingly, through creating cadres of paralegals and law school based clinics for facilitating legal aid as well as legal awareness.24

2. Efforts to reduce delay and arrears by (a) diverting cases to alternative dispute resolution (ADR) tribunals, informal justice mechanisms and tribunals;25 (b) improving infrastructure and increasing human resources of the judiciary in order to process cases faster;26 (c) introduction of court and case management techniques for speedier page187disposal of cases;27 and (d) through data driven responses to delay and arrears, by, as a first step, documenting and publishing data or delays and arrears.28

3. Introduction of e-justice apparatus, like e-(or paperless)courts; online availability of case status and orders; kiosks in court complexes for easy access to information, etc.29

4. Training for judges in court management techniques, and issues pertaining to access to justice, especially for marginalised communities.30

5. Introducing vulnerable witness courts and programmes to provide a safer and more congenial in-court experience for victims and witnesses.31

6. Access to higher courts for rights violations, especially through the innovation of public interest litigations.32

This is not necessarily an exhaustive list, but is nonetheless representative of the types of judicial reform measures currently being proposed or undertaken by the judiciary for improving access to justice. Most — though I argue below, not all — such measures are important steps towards facilitating access to justice. However, these judicial reform measures also betray an incomplete understanding of access to justice concerns as articulated in the previous section.

First, articulation of rights is absent from the judicial discourse on access to justice. Therefore, judicial evaluation of access to justice does not account for the impact of rights-limiting decisions of the judiciary, for example, where the court privileges the aesthetics of the city over livelihood concerns of impoverished populations living in slums;33 or where the court restricts the meaning of ‘relationship in the nature of marriage’ under the Protection of Women from Domestic Violence Act, 2005, and thus leaves many women remedy-less in case of abuse in intimate partner relationships;34 or where the court upholds a law which restricts the right to stand for elections to local government positions to those who hold certain educational qualifications, have certain monetary characteristics, and have a functional toilet in their home.35 This limitation serves to exclude, as the court itself acknowledges, a significant proportion of the population, mostly from the already socially marginalised groups. However, that calculation had no impact on the court’s reasoning. In a constitutional set-up which seeks to achieve social justice through equal political access by creating a democratic system based on universal adult franchise and non-discrimination, the court’s analysis does not account for the impact that its decision will have on the ability of marginalised groups to secure justice in the political sphere.

To be clear, the point here is not that the judiciary only delivers rights restricting decisions, or that its decisions have not substantively enhanced access to justice in the past. Rather, the concern is that in deciding on questions of substantive rights, the focus on access to justice is absent from the judicial evaluation of the right.

Similarly, articulating norms of accountability that give litigants the legal power to challenge rights violations and hold state officials accountable, is also not given adequate attention within the access to justice discourse. For example, in the Akshardham temple attack case, where the Supreme Court found that the entire case was fabricated by the police, and had resulted in two courts below imposing the death sentence, and in the accused serving eight years on death row for a crime they were framed for, no inquiry was directed or other action taken against the concerned police personnel.36 Similarly, the Supreme Court has been requiring accused persons to show that material prejudice page188is caused to them as a result of the violation of statutory rights in the criminal justice process, for such a violation to be considered as vitiating the trial or any aspect thereof. This places a very high burden on accused persons to prove a hypothetical — that had the violation not taken place, they would be materially benefitted. By requiring such proof, and by not automatically disallowing the concerned evidence, or process or the trial itself, the court condones routine violations of the statutory safeguards.37 In sum, then, norms of accountability, which increase access to justice within the system as a whole, are largely ignored within the access to justice discourse.

Second, these judicial reform measures conceptualise access to justice primarily as access to courts.38 There are two concerns with this approach. One, as mentioned above, courts are integrated into a wider ecosystem of institutions that together operate to process criminal and civil justice. Looking at courts in isolation from other institutions will only allow for partial access to justice. For example, the focus of legal aid efforts is often limited to the trial process. At the pre-trial stage, non-provision of legal aid has been held to not violate due process norms.39 Such an approach understands the trial process as insular from the pre-trial and investigative stages. These phases are crucial for building the case for trial. They are also controlled by the police, and provide ample opportunities for manipulation and violation of rights. An accused person is particularly vulnerable at this stage due to power imbalances between them and the police and prison authorities as also due to the incentives upon the police to violate rights in order to build their case.

Access to a lawyer at this stage can address parts of this vulnerability by ensuring, for example, that the accused’s rights against self-incrimination are protected,40 that rights violations are brought to the notice of the court, and that the accused is not made to undergo excessive detention pending trial.41

Similarly, delay reduction strategies are likely to be more effective if they focus, not only on reforming court processes for reducing backlog, but also on police and prosecutorial processes, serving of summons and warrants, the production of witnesses, custodial practices, and imprisonment during trial as well as post sentencing. Absent this scrutiny of other parts of the legal system, delay reduction efforts targeting only the judiciary are likely to remain ineffective in achieving their goal.

A related issue with understanding access from a system-wide perspective is that judicial reform measures tend to focus excessively on access to higher courts as part of access to justice strategies. No doubt, access to higher courts is an important element of access to justice. However, higher courts in the country are only located in 39 places, whereas district courts are present in every district of the country, and are therefore more accessible. They are also less expensive to access, since lawyers typically charge more in High Courts.42 Further, courts that are imbedded in the local circumstances are likely to have a more nuanced understanding of the social dynamics at play in a given dispute. A bottoms-up judicial model, which promotes the availability of remedial justice in the immediate locality is therefore likely to be more effective, efficient, and accessible in addressing rights violations.

Provisions of the Civil Procedure Code (CPC), especially the subject matter jurisdiction clause of Section 9; the power of a civil court to address public nuisance or other wrongful acts affecting the public, by issuing declarations, injunctions and other appropriate reliefs on a suit filed by two or more public spirited individuals;43 the power to entertain representative suits;44 and of course the inherent power of the court to pass orders to meet the ends of justice,45 can make civil courts viable page189fora for public interest litigations. Similarly, criminal courts have ample powers of supervision to protect against violations of criminal process rights. So also, designating district courts as human rights courts, as envisaged in the Protection of Human Rights Act, 1993, will be an important step towards localising constitutional justice.

The only power that district courts do not enjoy, is the power to strike down legislative acts for violations of fundamental rights. However, both the CPC and the Code of Criminal Procedure (CrPC) empower such courts to refer a law to a High Court for determining its constitutionality.46 Taken together, local courts can be activated to provide accessible remedies for violations of fundamental rights. Localising justice should play an important part in the discourse on access to justice.

Third, judicial reform measures for improving access to justice tend to focus on overcoming barriers to getting into court, rather than the treatment meted out within the court system, or on just outcomes from the legal system. As mentioned above, courts exercise public power, and more importantly coercive power, on individuals. Justice should therefore be seen not only as a matter of being able to litigate in courts, but also to fair treatment within courts, and to receive fair rulings from courts. Conflating access to justice with access to courts is based on an assumption that courts are necessarily just institutions. This does not take into account the profound sense of alienation felt by marginalised communities, from all state processes, including court processes. Communities that are vulnerable to exploitation and rights violations, whose survival is threatened by socio-economic structures supported by legal injunctions that deny them their basic needs, often see courts as part of the apparatus that serves to keep them disempowered. Marginalised and vulnerable populations are often brought to court as accused persons deserving punishment, rather than coming to court to vindicate their rights.47 Many marginalised groups are often categorised, if not legally than attitudinally, as inherently criminal or deviant,48 or otherwise a hindrance to some larger state objective (of development, growth, etc.). This framing becomes a justification to use the criminal sanction to deprive such groups of their liberties and their resources. The legal travails of the adivasis of Bastar, and of legal aid lawyers such as the Jagdalpur Legal Aid group trying to assist them, point to the legal legitimation of violence and violations that can occur in the face of social narratives that condone these practices.49

If the in-court treatment meted out to litigants is not consistent with their rights and dignity, their sense of alienation from the system, and therefore the voluntary usage of the system will itself decline. Such attitudinal barriers to access, which are based on narratives of incomprehensibility and intimidating nature of court processes, callousness of court staff including judges, re-victimisation and badgering by opposing counsel, lack of certainty in court processes, as well as the general perception amongst marginalised communities that the system is stacked against them, all play a very important role in keeping out from the court, those who require justice within. Focusing on in-court treatment is therefore not only essential for protecting the rights of persons who are within the court’s purview, but is also a significant determinant of who approaches the court, for what, and under what circumstances.

Take for example, the bail law model followed in India, where,

courts mechanically and as a matter of course insist that the accused should produce sureties who will stand bail for him and these sureties must again establish their solvency to be able to pay up the amount of the bail in case the accused fails to appear to answer the charge. This system of bails operates very harshly against the poor…. The poor find it difficult to furnish bail … they have to remain in jail page190until such time as the court is able to take up their cases for trial…. It is here that the poor find our legal and judicial system oppressive and heavily weighted against them and a feeling of frustration and despair occurs upon them as they find that they are helplessly in a position of inequality with the non-poor.50

A court should not then be understood as ipso facto a just space. Rather, the focus should be to make it so, inter alia, by making court processes litigant friendly, comprehensible, and transparent, and addressing those elements of the legal system which result in vulnerability and alienation within and through the courts. A good beginning in this regard has been made in Delhi, through the creation of a vulnerable witness programme, which includes facilities for making the court system more hospitable to the concerns of such witnesses.51

Provision of legal aid is an aspect of fair treatment in court and equal justice, and is a constitutional mandate under Article 39-A. The judiciary too has articulated very strong norms for ensuring legal aid to accused persons,52 as well as to particularly vulnerable victims of crime.53 Through a network of legal services authorities, legal representation is provided to indigent persons, to persons belonging to marginalised communities, to persons in custodial situations, and the like.54

Legal aid is seen as crucial for equal justice since, in an adversarial system of justice, legal power is accessed through legal representation. Access to legal representation is therefore essential for harnessing the power of the law in one’s favour. However, the adversarial system works on the fiction of equality of arms between opposing sides — that is, equality of quality of legal representation, so that the outcome is determined, not by who one’s lawyer is, but the rightness of one’s case. Though this fictional formalism has for long been exposed in theory, our doctrinal formulations continue to base themselves on this approach. For this reason, providing legal aid is seen as enough to overcome the challenge of providing equal justice to parties. However, the quality of legal aid provided is often a big determinant in the outcome of a given case.55 The general quality of legal aid provided by legal services authorities is widely recognised to be of indifferent quality. This is owing to various reasons, prominent ones being that rates of remuneration for legal aid lawyers is low, that there is no requirement or culture of pro bono work in the legal community, and that there is no formal mechanism for grievance redressal at the behest of a legal aid client or any consequence for poor performance by lawyers.56 For example, Indian courts have not recognised ineffective assistance of counsel as a ground for vitiating the trial process.57

As the Supreme Court has itself recognised, when one of the parties is vulnerable, the judge should be more interventionist, and ensure that the rights and interests of the person are protected.58 One way in which a judge can intervene to protect the rights of a poorly represented person, is to proactively ensure that the rights of the person are being secured, without waiting for the party to file applications on the issue. This is especially true in criminal cases, where access to the benefit of many statutory provisions, including, for example, bail, depends on applications being moved by the accused, rather than on the burden being on the state to justify why an accused should continue to be held in incarceration pending trial.

A final example of how the courts can be sites of routine rights violations is the petty corruption endemic in the court bureaucracy. While the legal aid system seeks to project access to courts as cost free for indigent and marginalised litigants, in reality, ‘it usually does not account for the bribes paid to the court staff, the extra fees to the legal aid lawyer, the cost of transport to the court, the bribes paid to the policemen for obtaining documents, copies of depositions and the like or to prison officials for page191favours. Legal aid beneficiaries do not get services for “free” after all.’59

The impact of these litigation costs will of course be felt most dearly by persons who are already impoverished. In this gap between the promise of a free and equal access to justice, and the quotidian reality of systemic discrimination, economic oppression, and impunity for rights violations, is the sense of alienation from court processes born.

Fourth, in the judiciary’s conception of access to justice, barriers to access are framed as a resource problem resulting in a mismatch between demand for and supply of judicial services.60 The response to this mismatch is to either restrict demand, or increase supply. For example, a significant concern about access to justice through courts is that cases in the judicial system are severely backlogged, because of which litigants are not afforded timely justice. This crowds out impoverished litigants who cannot afford the costs of such delays, or otherwise disadvantages them through long periods of under-trial incarceration. Delays in the system therefore reduce access to justice.

In order to tackle this problem of delays, judicial reform measures tend to primarily focus on reducing the demand for judicial services by diverting cases to other dispute resolution mechanisms; and by increasing the supply of judicial services by adding more judges, other personnel, and court infrastructure on the one hand, and disposing of pending cases on the other.

Take for example two approaches to addressing the demand–supply mismatch — diversion of cases into alternative mechanisms, and, what I will call, a disposal-orientedness of the judiciary, where the primary measure of judicial performance, individually and systemically, is the number of cases disposed of, rather than the quality of the justice delivered in such cases.

Diversion of cases into alternative mechanisms has gained ground in the last few decades. After the amendment to the CPC in 2002, ADR has been located prominently within the civil justice process.61 The National Legal Services Authorities Act mandates, as a core function of the legal services apparatus, the conduct of Lok Adalats, where dispute resolution can take place through informal mechanisms, rather than through a full court trial. On the criminal justice side, the introduction of plea bargaining through an amendment to the CrPC in 2005, allowed for a similar settlement between parties, albeit a settlement only on sentence, in certain types of criminal cases.62 All these mechanisms are actively encouraged within the judicial system and are seen as core and prominent elements of facilitating access to justice, by disposing of cases, reducing backlog, and thus freeing up judicial services for more important matters.

This diversion of cases away from the judicial system, however, should be looked at with caution. What types of cases are being sent out of the system, who makes use of these alternative mechanisms, for what reasons, and with what outcomes, are important questions to be answered before one assumes that such diversion is necessarily good. If the judicial system is seen as a bulwark against the violation of rights, how robust is the decision-making in these alternative mechanisms in protecting such rights? What remedies are available to a litigant who does not get adequate recourse in these mechanisms, or who suffers violations in these alternative mechanisms? Without engaging with these questions, the diversion of cases into alternative mechanisms cannot be assumed to be a measure that facilitates access to justice.

Unfortunately, the focus of the judiciary appears to be on the numbers of cases disposed of through these alternative mechanisms, rather than on the quality of dispute resolution provided by them. Studies have raised serious concerns about the page192operation of alternative mechanisms, especially informal mechanisms like Lok Adalats, whose success is measured based on the numbers of cases disposed of, creating perverse incentives to both divert cases to the Lok Adalat system, and to persuade, admonish, or even coerce parties into settling their disputes.63 Diversion mechanisms rely on bargaining and consent to arrive at a resolution of cases. If the parties have an unequal bargaining position, as for example, a poor litigant against an insurance company in a Lok Adalat, or a person who has been in undertrial incarceration for long periods of time in a plea bargain for a crime against the state, then the less resourced litigant is more likely to settle for less than what she would have been entitled to under the law. Galanter and Krishnan have characterised these processes as ‘bread for the poor’, or as second best justice for those who cannot afford the luxury of a full court process.64

Diversion mechanisms, therefore, end up creating a three class judicial system — a first-class trial process with the full guarantee of all rights and remedies, available only to those who can afford the entire expense; a watered down, second-class version of the same for those who cannot afford the full expense, but who cannot (yet) be sent out of the system; and a third-class version for those who cannot afford the expense and can be conveniently pushed aside.

Recent access to justice measures at the national level, including schemes for training paralegal volunteers and for supporting legal aid clinics, further intensify this classification. Paralegal volunteers in legal aid clinics are supposed to provide legal aid by primarily assisting in the amicable resolution of disputes, and to send cases to appropriate ADR mechanisms, where possible. While legal aid clinics and paralegal volunteers can certainly amplify the impact of access to justice measures, these mechanisms are also meant to be used by persons who cannot afford to hire their own lawyers. Provisioning such groups, and such groups alone, with the assistance of less than qualified lawyers, tasked with attempting as far as possible to keep the case out of court, is likely to have a disparate impact in terms of who gets excluded from court processes and whose entry is facilitated.65

Another disturbing feature of diversion mechanisms in the criminal justice process is that the same authorities who are tasked with providing legal services to indigent accused persons are also charged with conducting Lok Adalats and plea bargains.66 The incentives of the personnel of these institutions are likely to be misaligned if they have to focus on diversion of cases from the legal system instead of quality legal aid within the judicial system.

Echoing the focus on the number of cases disposed of in these alternative mechanisms, is the disposal-orientedness of the judiciary itself. Judicial performance is measured by ‘units’ of cases disposed of by a particular judge. The performance indicators of the system as a whole, tracked for example, on the NJDG and the Supreme Court’s Court News, examine pendency and disposal figures to understand whether the performance of the judiciary as a whole is improving or not. Not only are judges incentivised to increase disposals, but also, the focus of judicial reforms is on enabling the system to dispose more cases, by, for example, adding more judges. The quality of decision-making or other reasons for delay in disposal of cases are secondary to the concern for numbers.67

Thus, while diversion and disposal-orientedness of the judiciary are justified as measures to increase access to justice, in practice, they often work against the interests of facilitating access to justice as conceptualised above. The exclusive focus on ‘docket explosion’ through increased pendency of cases, often masks concerns of ‘docket exclusion’ of marginalised groups.68

page193Diversion and disposals are not the only measures undertaken by the judiciary to address the issue of delays and congestion. Courts have been proposing and adopting more efficient methods for processing cases, for example, through the introduction of e-technologies. However, the focus in making e-Justice a reality is also primarily resource-centric — providing the hardware, software and know-how to transition from a paper based to digital system. Questions regarding court culture, lawyers’ incentives, and litigant experiences are secondary concerns in the reform process.69

Similarly, another approach to reducing delay is by setting up fast track courts to deal with serious offences. These courts are conceived of as special institutions that will process cases faster than ordinary courts. However, fast track courts do not follow any special procedures. They operate under the same procedural norms as any other court. It is not clear that they provide swifter justice — there is little data to support or oppose the proposition. However, even if they do, it is worth asking why this is so. Is it a matter of culture or orientation of the judge, who on a fast track court feels more empowered to insist on timely processing of cases by lawyers? Does the ability to process cases faster come at the cost of quality of justice? And if fast track courts do have the ability to deliver quality justice in a timely manner, can all courts be made into fast track courts, rather than limiting this phenomenon to a select few? These questions are rarely asked and answered in the focus on increasing resources to the system, or addressing demand–supply mismatch.

To be clear, this is not to suggest that the judiciary does not have a resource problem. It does,70 and there is urgent need to address resource constraints especially since delay and court congestion has a disparate economic impact on impoverished and marginalised groups. However, the problem is that of reducing access concerns only to concerns about resources on the one hand, and a focus on resources without looking at the impact of resource reforms on the broader ideals of access to justice on the other. Simply put, resource constraints of the judiciary are problematic because they impede access. Therefore, removal of resource constraints should not take place in a manner that serves to further impede access. The prominent focus on resources and demand–supply mismatch ends up doing exactly that, and can become counter-productive to the goal of access to justice.


Thus, while the judiciary has made important and necessary judicial reform interventions to increase access, the focus of its interventions betray a partial and incomplete understanding of access to justice under the constitutional scheme. By focusing primarily on access to courts, and on questions of resources, the court loses the opportunity to meaningfully engage with the constitutional mandate of creating a just social order. Rather than viewing access to courts as the be-all of securing access to justice, the judicial conceptualisation of access to justice should be that of a means to the end of securing social justice. As a way to achieve this ideal, the judiciary should view access to justice not as a goal, progress towards which can be measured in concrete numbers or input/output variables, but as a perspective that should inform all aspects the judicial function — from decision-making on substantive rights, to construction of procedural norms, to fashioning remedies, to the very administration of the judicial set-up. These two attitudinal changes will go some way in addressing the present disconnect between the constitutional ideal of access to justice, and the judicial implementation thereof.


1. page194Preamble, Constitution of India.

2. Constituent Assembly Debates, Volume XI (25 November 1949).

3. Granville Austin. 1966. The Indian Constitution: Cornerstone of a Nation. London: Oxford University Press, p. 50, quoted with approval in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (Kesavananda Bharati).

4. Art. 37, Constitution of India. See, Kesavananda Bharati, para 672; Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

5. Constituent Assembly Debates, Volume VII (9 December 1948).

6. See, People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399: (2003) 2 SCR 1136.

7. S.P. Gupta v. Union of India, 1981 Supp SCC 87 (S.P. Gupta).

8. S. Muralidhar. 2005. ‘Access to Justice’, Seminar, available online at http://www.india-seminar.com/2005/545/545%20s.%20muralidhar1.htm (accessed on 27 March 2016).

9. See generally, Cass R. Sunstein. 1996. ‘On the Expressive Function of Law’, University of Pennsylvania Law Review, 144: 2021–2053.

10. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

11. For example, in universities or workspaces, and collectively through sustained engagement with Parliament, which led to a statute being passed in 2013.

12. See for example, Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759; Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297: (2012) 9 SCR 895.

13. Hilary Sommerlad. 2004. ‘Some Reflections on the Relationship between Citizenship, Access to Justice and the Reform of Legal Aid’, Journal of Law and Society, 31(3): 345–368, p. 357.

14. See generally, Muralidhar, ‘Access to Justice’.

15. UNDP. 2004. Access to Justice Practice Note, p. 6.

16. People's Union for Civil Liberties v. Union of India, WP (C) No. 196 of 2001 (SC).

17. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

18. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.

19. See, S.P. Gupta.

20. M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.

21. Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767.

22. Imtiyaz Ahmad v. State of U.P., (2012) 2 SCC 688.

23. See generally, resolutions adopted at the Chief Justices’ Conference in 2009, 2013, and 2015, available online at http://supremecourtofindia.nic.in/cjiconference.htm (C.J. Conference Resolutions). The Chief Justices’ Conference is a high-level decision-making body of the judiciary which lays down roadmaps and policy guidelines for the judiciary. See also, ‘National Mission for Delivery of Justice and Legal Reform: A Blueprint for Judicial Reforms’, http://lawmin.nic.in/doj/justice/National_Legal_Mission-7NOV2009.pdf.

24. NALSA Scheme for Para Legal Volunteers (Revised); NALSA (Legal Aid Clinics) Regulations, 2011.

25. See for example, S. 89, Civil Procedure Code (CPC), 1908; Legal Services Authorities Act, 1987; C.J. Conference Resolutions.

26. See, C.J. Conference Resolutions; Law Commission of India. 2014. 245th Report on Arrears and Backlog. New Delhi: Government of India.

27. C.J. Conference Resolutions.

28. See, National Judicial Data Grid (NJDG), available online at

29. See for example, ‘The Courts of Tomorrow’, available online at http://innovationcouncilarchive.nic.in/index.php?option=com_content&view=article&id=329&Itemid=115.

30. See details of programmes at the National Judicial Academy, Bhopal, available online at http://www.nja.nic.in/.

31. The High Court of Delhi has set up special vulnerable witness courtrooms to enable such witnesses to give evidence in an atmosphere of reduced fear and trauma; see, ‘Guidelines for Recording of Evidence of Vulnerable Witnesses in Criminal Matters’, High Court of Delhi, available online at http://delhihighcourt.nic.in/writereaddata/upload/notification/notificationfile_lcwcd2x4.pdf.

32. See, S.P. Gupta.

33. Almitra H. Patel v. Union of India, (2000) 2 SCC 679.

34. D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469.

35. Rajbala v. State of Haryana, (2016) 2 SCC 445.

36. Adambhai Sulemanbhai Ajmeri v. State of Gujarat, (2014) 7 SCC 716.

37. See, Aparna Chandra and Mrinal Satish. 2016. ‘Criminal Law and the Constitution’, in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta (eds), Oxford Handbook of Indian Constitutional Law, pp. 794–813 London: Oxford University Press.

38. A clear example of this approach is the National Commission for Review of Working of the Constitution, which recommended the incorporation of a fundamental right to access to courts as part of the Constitution.

39. page195Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1.

40. Salduz v. Turkey, Application No. 36391 of 2002: 2008 ECHR 1542.

41. See, United Nations Office on Drugs and Crime. 2013. United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. New York: United Nations, p. 6. Available online at https://www.unodc.org/documents/justice-and-prison-reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf (accessed on 27 March 2016).

42. As an example, even National Legal Services Authority (NALSA) schemes stipulate higher retainers to Supreme Court Legal Services Committee panel lawyers, compared to High Court lawyers, compared to District Court lawyers.

43. S. 91 CPC.

44. Or. I, R. 8 CPC.

45. S. 151 CPC.

46. S. 113 CPC; S. 395 CrPC.

47. See, Muralidhar, ‘Access to Justice’; Theodore Eisenberg, et al., 2012. ‘Litigation as a Measure of Well-Being’, Cornell Legal Studies Research Paper, Cornell University.

48. For example, de-notified tribes who were once branded as criminal tribes. Though statutory law does not classify such tribes as inherently criminal any more, they continue to be treated so by the criminal justice system. See, Dilip D’Souza. 2001. Branded by Law. Delhi: Penguin Books India.

49. See, Vrinda Grover. 2015. ‘The Adivasi Undertrial: Prisoner of War’, The Justice Project; Ashwaq Masoodi. 2015. ‘A Few Good Men and Women’, Livemint, 15 October, available online at http://www.livemint.com/Leisure/t5K8jPWw2ooX7mqlHvFiPK/A-few-good-men-and-women.html (accessed on 27 March 2016); Yashwant Dhote. 2015. ‘The Handmaidens of Justice’, Outlook, 28 December, available online at http://www.outlookindia.com/magazine/story/the-handmaidens-of-justice/296159 (accessed on 27 March 2016).

50. Natia Jiria v. State of Gujarat, 1984 SCC OnLine Guj 228: 1984 Cri LJ 936.

51. See, ‘Guidelines for Recording of Evidence of Vulnerable Witnesses’.

52. M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.

53. Delhi Domestic Working Women’s Forum v. Union of India, (1995) 1 SCC 14.

54. Legal Services Authorities Act, 1987.

55. See for example, Law Commission of India. 2015. 262nd Report on the Death Penalty. New Delhi: Government of India (discussing the impact of representation by legal aid lawyers on confirmation of the death penalty by the Supreme Court).

56. See for example, Multiple Action Research Group (MARG). 2012. Needs Assessment Study of the Legal Services Authorities in the States of Madhya Pradesh, Jharkhand, Bihar, Uttar Pradesh, Odisha, Rajasthan, and Chhattisgarh.

57. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600.

58. Lingala Vijay Kumar v. Public Prosecutor, (1978) 4 SCC 196.

59. Muralidhar, ‘Access to Justice’. See also, Krishnan, et al., 2014. ‘Grappling at the Grassroots: Access to Justice in India’s Lower Tier’, Harvard Human Rights Journal, 27: 151–189.

60. See for example, C.J. Conference Resolutions; see also, C. Raj Kumar. 2013. ‘Expanding Access to Justice’, Hindu, 28 November, available online at http://www.thehindu.com/opinion/lead/expanding-access-to-justice/article5398212.ece (accessed on 27 March 2016).

61. S. 89 CPC.

62. Chapter XXIA CrPC.

63. Robert S. Moog. 1991. ‘Conflict and Compromise, The Politics of Lok Adalats in Varanasi District’, Law & Society Review, 25(3): 545–570; Marc Galanter and Jayanth K. Krishnan. 2004. ‘“Bread for the Poor”: Access to Justice and Rights of the Needy in India’, Hastings Law Journal, 55(4): 789–834.

64. Galanter and Krishnan, ‘Bread for the Poor’.

65. See for example, NALSA Scheme for Para Legal Volunteers (Revised); NALSA (Legal Aid Clinics) Regulations, 2011.

66. See, ‘History of Legal Movement in India’, available online at http://nalsa.gov.in/index.html (accessed on 5 April 2016).

67. See, Law Commission of India, 245th Report (discussing how increasing the number of judges is not enough to address delays and arrears).

68. G. Mohan Gopal. 2013. ‘Supreme Court and the Aam Aadmi’, Frontline, 3 May, available online at http://www.frontline.in/cover-story/supreme-court-and-the-aam-aadmi/article4619585.ece (accessed on 27 March 2016).

69. For example, the impetus to hold remand proceedings through video-conference, is based on the convenience of state authorities and not on the needs of impoverished litigants who often rely on court productions as the means to communicate with their lawyers (since often legal aid or poorly paid private lawyers do not visit their clients in prison), and meet family members.

70. See, Law Commission of India, 245th Report.