National Judicial Academy
Access to Justice: Constitutional
Perspectives
Dr. S. Muralidhar
Judge, High Court of Delhi
November 13, 2015
Outline of the presentation
Concept of Justice and Access to Justice
Barriers to Access to Justice
State’s Response to Access to Justice
Three waves of Access to justice
Informal Legal Systems
Challenges ahead
An ideal legal service delivery model
Agenda for change
Concepts: Justice and Access to
Justice
Justice implies fairness and the implicit recognition of
the principle of equality
Access to justice serves two purposes
-ensures that every person is able to invoke the legal
processes for redress irrespective of social or economic
status or other incapacity, and
-ensures that every person should receive a just and fair
treatment within the legal system.
Barriers to Access to Justice
Mystification of law and legal processes
Privileging of sections of society and criminalizing poverty
Dependence on lawyers
Costs, delays and uncertainties
Institutional model of state-sponsored legal aid
Special disadvantages not limited to poverty, social status,
economic status, gender, age, sexual orientation
Failure to integrate the non-formal legal systems with the
formal legal system
State Response to Access to Justice
 Constitution of India: Articles, 14,19,21,22,39-A
 Section 304 of the Code of Criminal Procedure, 1973:
Legal aid to accused at State expense in certain cases
 Order 33 Code of Civil Procedure, 1908: Suits by
Indigent Persons
 Legal Services Authorities Act, 1987 (Section
12: Criteria for giving Legal Services)+ Lok Adalats
 Arbitration and Conciliation Act, 1996
 Gram Nyayalayas Act, 2008
State Response to Access to Justice
 National and State
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Human Rights Commission
Commissions for Women
Commissions for Protection of Child Rights
Commission for Minorities
 Other Tribunals including those for accident claims, consumer
disputes, debt recovery, issues related to employment under the
State and the Armed Forces, telecom disputes etc.
 Delhi Government’s mediation centres
 Public Grievances Commissions/Cells
 Permanent Lok Adalats of public utilities
 Other dispute resolution mechanisms including Crimes Against
Women cells and committees for complaints of sexual
harassment
Three waves of Access to Justice
First Legal representation: the traditional model
of legal aid which is based on providing
representation to poor litigants in courts
Second – the expanded notion of locus standi –
class action and public interest litigation
Third – ADR: Mediation, Arbitration, Conciliation
and Lok Adalats
Evolution of legal aid
 First Phase
 Pre-independence era: Introduction in the 17th century of
the Anglo Saxon adversarial model of litigation
 Early recognition of the right under the 1898 CrPC
 Courts alive to the need to provide legal aid in criminal
cases: Re: Llewelyn Evans AIR 1926 Bom 551 and P.K.Tare v.
Emperor AIR 1943 Nag 26
The Second Phase
 Constitution: Articles 21, 22 and 39-A
 Expert Committees on Legal Aid
 Expert Committee on Legal Aid (Central Govt) (1973)
 Juridicare Committee (Central Govt) (1977)
 Committee on Implementation of Legal Aid Schemes
(CILAS)
The Third Phase
 Enactment of the Legal Services Authorities Act 1987
 Formalising the hiearchical and institutional model of
legal services delivery
 Focus on Lok adalats and other pragmatic means of
ensuring speedy justice
 A model of legal services delivery conceptualised and
controlled by the judiciary
 Gram Nyayalayas Act 2008
Lawyers and Representation
 Issues concerning lawyers
 Availability of experienced and competent lawyers at all
levels: Quality of legal services delivery
 Payment of commensurate fees
 Perception of the role of a lawyer as a legal service
provider: State driven and not Bar driven
 Different models of use of lawyers for legal services:
 Amicus curiae, Pro-bono lawyers, duty solicitors
Response to the Problem
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Judicially evolved PIL
Expanded notion of standing
Informality of procedure
Appointment of Commissioners
Court reaching the problem, and treating it as a
non-adversarial litigation.
 Monitoring of implementation
 Development of law in specific areas (human
rights, environment, judicial accountability)
Response to the Problem
 PIL as a strategic arm of the legal aid movement.
 Issues addressed in initial years of PIL
 Conditions in custodial institutions
 Bonded agricultural labour and child labour
 under trials in jails
 Issues addressed in later years
- Environment
- Right to Food
- Urban Life
Alternative Dispute Resolution
 Section 89 of the Code of Civil Procedure, 1908
 Arbitration (Arbitration & Conciliation Act, 1996)
 Conciliation (Arbitration & Conciliation Act, 1996)
 Judicial settlement including settlement through Lok
Adalats
 Mediation (Afcons Infrastructure Ltd. v. Cherian Varkey
Construction Co. (P) Ltd. (2010) 8 SCC 24; Salem
Advocate Bar Association v. Union of India (2003) 1 SCC
49)
The Legal Services Authorities Act, 1987 (LSAA)
 LSAA inspired by the draft legislation
appended to the 1977 Report of the Juridicare
Committee in two important features:
 Definition of `Legal services’ includes “the
giving of advice on any legal matter”
 Special categories who are entitled to legal
aid irrespective of their qualifying the means
test
LSAA: The Institutional Structure
 Hierarchical pyramidical structure
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National Legal Services Authority
State Legal Services Authorities
Authorities at the High Courts
District and Taluk levels.
LSAA: The Institutional Structure
 Composition: dominated by executive and judiciary
 Shift away from the beneficiary of legal services to
the institution dispensing legal services.
 Sizable portion of the budget for salaries and
maintenance of the establishment
 Co-option of the judiciary by the executive
 Multi-tasking by judges at district and taluk levels
Informal Legal Systems
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Paani Panchayats
Khap Panchayats
Katta Panchayats
Shalishi Courts
Naari Adalats
Muslim Women’s Jamaat
Other caste, community dispute resolution mechanisms
Parallel systems
Challenges
 Reluctance of people to engage with the Formal Legal System (FLS)
 A robust Non-formal Legal System (NFLS)
 Need to reorient the FLS as a people-centric system relevant to their
problems
 Effectiveness of ‘Lok Adalats’: “Bread for the Poor”
 Identifying legal services needs and catering to them at the earliest point in
time
 Integrated approach to law and legal services reform
 Critiquing the institutional model of legal services delivery
 Inter-disciplinary approach”: Involve a wider cross-section of the society
Legal aid needs of the rural population
 Problems of security of land tenure;
 Availability of access to resources like clean
drinking
water,
water
for
irrigation,
transportation, and pricing and marketing of
commodities;
 Availability of finances and repayment of loans
taken for agricultural operations;
 Issues concerning agricultural labour;
 Displacement on account of manmade calamities
(incl. Caste conflicts) and natural calamities;
Legal aid needs of the rural population
 Access to basic facilities including primary
healthcare and education;
 Loss of shelter and livelihood on account of
forced displacement to make way for
development projects
 Growing unemployment and lack of avenues on
account of failure to develop alternative skills;
 Forced migration to cities seeking employment
Agenda of the Legal Services Committees
 What the activities ought to include:
- preventive legal aid elements like advice, counselling
and mediation
- Making it available at the point of entry into the
system – within closed penal institutions
- social justice litigation on matters “of special
concern to the weaker sections of the society and
for this purpose, give training to social workers in
legal skills.” (S. 4 (d) LSAA)
Programmatic Content and Implementation
Visibility and Accessibility: Organise periodic visits to closed
institutions (prisons, juvenile homes, police lock ups,
women’s shelters, beggars’ homes) by team of lawyers,
doctors and social workers and follow up with remedial
steps
Awareness: Prepare brochures, pamphlets in the local
language explaining laws, constitutional rights and
remedies: Tie up with local educational institutions to
outsource such activity
Outreach: Travel to urban slum clusters and remote corners
of districts to increase visibility and enthuse participation
by the disadvantaged sections in the legal services
programmes
An ideal legal services delivery model

Preventive This includes providing counselling,
advice, pre-litigative resolution mechanisms at the nearest
point in time and within easy reach

Remedial This envisages strengthening the existing
models of providing legal assistance from the point of
entry into the legal system till the point of exit

Rehabilitative This envisages an expanded notion of
providing legal services even beyond the litigative phase:
Relevant for issues like bonded labour, child labour,
persons who have been under involuntary incarceration in
penal custodial institutions
Agenda for change
 Challenging the constitutionality of laws that criminalize poverty
 The use of law and institutional reform litigation as a strategic arm
of the legal aid programme
 Legal aid as part of the overall package of welfare measures
intended to support the economically and socially disadvantaged
 Sensitization of the judiciary
 Incentivizing lawyers’ participation
 Interdisciplinary approach
 Clinical legal aid
 Widening the range of legal service providers: para legals, civil
society