Music
Hello, Hello Everybody, Myself Dr. B.S. Patil.
Today, I am making a presentation
on behalf of my colleague Kim Couto.
The content writer of this module one is Kim Couto and
I am making a presentation on her behalf.
The module one is relating to Access to Justice
and Analysing of its Concept, History and Evolution.
And in today's presentation,
I'll be going through the meaning of justice
and when we go through the meaning,
it has got two components.
Traditional as well as modern view over the meaning.
Then from justice we move on to Access to Justice,
that's what the main topic of today's discussion.
And here again we are having two
components, traditional as well as modern view.
And finally, I end my presentation with a discussion on
the mechanisms to ensure this Access to Justice.
So, to start with today's presentation,
the object behind this presentation is to make you
understand the concept of justice and its significance.
The conceptual analysis and the framework
and identify and recognize various mechanisms
which ensure such access to justice.
To understand the concept of justice,
it is necessary to know the concept of law.
The law and justice are so closely related with each other
that they are as good as the two sides of a same coin.
The justice and the law, their relationship again
I want to quote another example
that, it's like a pen and ink.
A pen without ink is of no use.
Similarly, an ink without pen may not be put to proper use.
So, similarly law and justice are has to be kept together.
So one of the Jurist has mentioned
very beautifully that 'law without justice is blind
and a justice without law is lame'.
So, therefore, in the beginning
I just want to spend some time
knowing understanding what is law
but as the topic is connected with justice
and access to justice,
I may not be able to go through
with the definition of law elaborately.
So, in the beginning what is law
and what is justice is going to be our first task to clarify.
So, what is law?
So there have been many jurists
working on this concept of law.
And many jurists have also come up
with various definitions of law.
But one final conclusion that we can draw is that law,
justice these are the concepts which cannot be explained
or defined from one's point of view.
There are two broader concept, but nonetheless
the efforts of these philosophers have not gone waste,
as it is you may recall the names, the philosopher Aristotle,
St. Thomas Aquinas, Roskopon, Kelsen.
These jurists have come up with their own definitions of law
and these definitions has brought us,
may not be complete full proof definition
but definitely it has brought lot of clarification
in understanding the law.
In the similar vein, it is also necessary for us
to know the definition of justice.
And the definition of justice differs from person to person
and definitely differs from time to time,
and culture to culture.
And there is no acceptable definition
of justice that exists in this world.
To explain my point of view,
let me take up an example of say moral policing.
Moral policing is been defined
and it's been considered to be a wrong
by many of the legal luminaries.
But many of the traditionalist
find moral policing as the necessary...
necessary evil which has to exist in this society.
To take an example from one culture to another culture.
There is a concept called as White Man's Burden.
Now, this White Man's Burden
is the burden which an European carried with him
wherever he went to colonise the world.
So, the colonizer thought that
there is un-civilisation exists in rest of the world
other than the Europe
and he is under the burden to civilize the rest of the world.
So, that is his justification
for the act of bringing in civilization.
But wherein the other parts of the world
where they tried to impose their views
on this the culture, the traditionalist felt
that it is a attack on their existence.
So, this again led to two different views.
So, justice according to white man is different
and justice according to the traditional
and the locals is different.
So, this conflict of views do exist
while defining the definition.
So therefore, what we can do is,
what we can final conclude is justice is a concept
which is influenced by politics, ideology, religion,
ethics, culture and etc.
So therefore, rather than looking into what is justice,
let us look into the justice as we understand.
So, understanding of justice is of two kinds.
There is a traditional view to justice
as well as there is a modern view to justice.
What traditionally we look at justice?
As Plato has mentioned justice is
performing fair and just actions
giving each person their due
sense of being fair, sense of being equal,
moral and impartial,
and we treating all of them equally is justice.
So traditionally, justice is a behavioural pattern
between the two individuals.
So whenever I treat other person fairly, equitably
and impartially I tend to do justice.
So justice in Indian context,
justice takes over the role of Dharma.
So according to this,
the a person who treats everybody is
everybody equally is acting according to Dharma.
So this is how traditionally we look at justice.
So if you closely analyse the traditional view,
the justice has got three attributes.
The attribute number one is fairness, equality,
and finally it is impartially.
The fairness, now let us take fairness for the discussion.
Fairness means absence of discrimination.
Fairness is acting without bias.
And as long as a person act without discrimination
and without bias is considered to be a fair person.
And it is one of the important component of justice.
Next is equality.
Now equality, to their to explain equality
it has four components, that is
fair distribution of benefits among all stakeholders
is important component of equality.
Similarly, in the same line
the same equality should be shown
in distribution of burden also.
Not only the benefits, burden also.
Equals should be treated equally
and unequal should be treated unequally.
So these are the four things which constitute equality.
Then comes the final component, that is Impartiality.
So Impartiality is a hallmark of justice
where access of prejudice
is what is expected in idea of justice.
So prejudice cannot go hand in hand with a justice process.
So absence of prejudice has to be shown
to establish impartiality of a person.
So these are the three important components of
justice in a traditional sense.
Let's say, for example, if a teacher
gives same marks for the two students.
Let's take an example of a test, a spelling test.
A girl secures full out of out marks in the test
and she is not happy with that.
Because even inspite of securing out of out
she got only star.
But whereas the other girl
who has scored out of out but got a golden star.
According to the child, she is been treated unfairly
because there is an absence of fairness,
there is absence of equality,
there is an absence of impartiality.
So, this is how the traditionally
justice could be understood.
And the same understanding continued in
many of the legal systems.
In Magna Carta that is a great charter, in drafted in 1215.
To no one will we sell, to no one will we deny
or delay, right or justice.
So that's how the traditionally we took up
the understanding of justice.
But modern view is quite different from the traditional view.
The main difference is
the dissociation of concept of justice
from that of religion.
For the first time in a modern view,
justice is looked up on as a different
all together from the religion.
So what happens in a modern view?
In modern view, the same the justice which was
actually told to us through a system called as morals
continue to remain with us
but now it has taken up a grab of a law.
So, natural justice continue to remain with us
but in the form of legal rules.
And these legal rules provide us justice.
So whenever a legal rule ensures justice,
it becomes legal justice
and that's what the modern view of justice.
So it is not a justice a mere justice,
it's a justice dispensed accordance with the legal rules.
So therefore, in the modern concept of justice
there are two per parties,
one is the right holder and another is duty bearer.
So in the modern view of justice,
there are five important components or characteristics.
The first and very important characteristic of justice is
it is secular in nature;
so religion has got nothing to do with it.
Second one is the uniformity in justice because
the law prescribes justice and law ensures justice.
Third, providing only the right is not enough
we need to have remedy for that also.
So that is the third important component
that every right that is prescribed by a law
they provide remedy for it.
The remedy can be of redressal of violated right
or it can be compensation for violating of right.
Then, the third the fourth one is that the making of a law,
enforcement of justice
is going to be a prerogative of the state.
The state is going to look after dispensation of justice.
And the last one, the benefits, the punishments
would be based upon the deeds of the each person only.
And no other consideration
should be taken into consideration.
So to make a final distinction between
traditional and the modern view.
Traditional view is connected with religion
and it is giving each his due.
Justice is a virtue connected with the religion
but whereas in the modern view,
the five components are important.
So there is dispensation based upon the act of the person.
There is recognition of a right.
There is existence of a law
and then there is a remedy to enforce the violated right.
So, let's us move on from the traditional and modern view
understanding of justice to
effect of this modern view on the system.
So here, the effect is that the state is under the duty
not only to make a law,
it is under the duty to establish
an effective mechanism to enforce those rights.
So, that is the most important impact of the modern view.
The modern view led us to believe
that you be just you be remedial
where there is a right there has to be a remedy.
A right without remedy it is like an illusionary right
which has got no existence.
So, the impact of modern view is
establishment of an elaborate mechanism
for enforcement of justice.
So, under the modern view the state is under
different kinds of obligations.
The obligations goes as follows.
State must ensure justifiable and fair
equitable outcome of any act of a person.
And to ensure such outcome
they have to have mechanism.
This is going to be the second obligation
to build up mechanism for justice delivery.
Then after establishing mechanism,
there has to be an effective and efficient judiciary
to function and delivery the justice.
Then along with deliver of justice,
there has to be a mechanism to make the law.
Law that facilitates access to justice;
and then state also should provide
additional kind of justices
which I am going to deal in the nearby slides.
So, coming to next part of the discussion
that is Access to Justice.
So what we have seen now is that there is a need for
justice dispensation by the state.
That is the obligation created by the modern view
and one of the important requirement
under the modern view is access to justice.
So, now question is what is access to justice.
According to jurist Upendra Bakshi,
access to justice is ability of a person
to participate in judicial process.
The question is whether that is actual definition
or whether that is being, if that is a definition,
whether that is being ensured by the state.
So, traditionally we look at access to justice
as providing courts, sufficient number of courts
and then providing assistance
to the needy people to approach the court.
So that becomes the major functions of
access to justice in traditionally.
So, therefore traditional view
of access to justice would be
court establishment of a court to dispense the justice,
then providing access to such courts
and in case of difficulties,
providing legal assistance to such needy persons.
So if these three activities are performed,
then the justice is ensured.
This is what a narrow look at access part.
But if you look at the access to justice
practically, there are a series of problems
which a person faces.
So, I have just made a list of the six problems
which a person may face while accessing justice.
But this list is not exhaustive,
this is a mere illustrative list.
First is economic capacity or incapacity.
So when a person is economically weak,
he may not be able to access justice because
justice do not come free of cost.
He have to make court fees as a payment
and then also you have to hire a service of an advocate.
That is the first hindrance.
Second one is procedure of justice.
The Indian courts follow a justice delivery system;
the procedure is cumbersome
and the delay would be unimaginable;
and further it is lot of
time consumption is involved in this process.
So this time consumption is going to be the second
biggest hurdle which a litigant has to cross over.
Third one would be complex procedure.
The complex procedure makes a people
or the litigant not to follow
the proceedings before the court.
So he would be at loss.
As a result of that, he would be completely
depended upon the professionals
who are assisting the parties to
reply on them to provide justice.
Then comes the legal representation.
So the legal representation is another problem
which the needy person face as
the legal representation comes with the cost.
Then comes the important aspect of geographical factors.
Courts are established at the headquarters.
And a person living in a remote place,
mofassil areas has to travel
all the way to the headquarter to fight the case.
So, if you keep aside the litigation cost,
that is court fees and fees to the advocates
and additional fees that is additional expenditure
that is involved with other connected matters.
The travelling itself would be another major expenses
which a litigant has to undertake.
Then comes the inadequate number of courts
as the population is increasing,
correspondingly there is a no increase of the court.
So keeping these problems in mind,
there has been continuous attempt made by the jurist
to come up with a new method, new approach
to provide meaningful access to justice.
So I have classified these three processes
into three waves of reforms.
The first way of reform was
initiative by Capelletti and Garth.
These jurist came up with the idea of providing legal aid.
Now legal aid is nothing but legal assistance.
Then came the second wave
where the second wave was marked with
the system of class action.
Now, class action is where a person is
in not in a position to go to court and fight the case.
A group of persons
who are not in a position to fight a case;
somebody else would fight for them as a class.
So this class action to quote few examples
public interest litigation is a best example
for this class actions.
Followed by we have a provision in civil procedure court
of representative suits..
That's also and a good example of class action.
Then comes a very important and the modern wave
that is the third wave where the jurist,
the legal systems, legislatures everybody is making
encouraging the parties to go for ADRS,
that is Alternative Dispute Resolution Systems.
So court should not be considered as the sole
dispute resolution authority.
The parties can take on themselves
the burden of resolve in the dispute
by adopting negotiation, mediation, conciliation
or even arbitration as alternative process for
resolution of dispute.
So therefore, the human rights movement
of United Nations has actually expanded
the concept of access to justice to the present date.
So earlier the traditionally we look at access to justice as
providing legal assistance but in the modern view,
the access to justice would be much more
then nearly providing assistance.
So the modern view of access to justice
has actually increased
the ambit of the concept of access to justice.
The presently, when we look at the access to justice,
it is not merely providing legal assistance.
In addition to legal assistance
there is a provision for
providing ADRS, Alternative Dispute Resolution forums.
And in addition to that,
there is going to be a third very important category
which is a part of modern view
that is a new category of justice seekers.
So traditionally when you look at justice seekers,
who are the people who want justice?
The people whose rights have been violated.
Now take for example of a criminal law.
Who can file a complaint?
Who can go to court? Is the person
who has suffered a crime against himself
or whose rights have been violated?
So in other words,
the rest of the world cannot initiate criminal proceedings
for violation of somebody else's rights.
It is the same person,
the person himself the victim himself
has to continue with the criminal proceedings.
Similarly, the if you look at the criminal law,
the whole edifice of the criminal law is
based upon the rights of the accused.
So this is how, traditionally, we have some up with
the development of criminal laws in India.
What is the modern view is doing it
to this traditional understanding of a criminal law.
The modern view added one more justice seeker into the list
other than the accused,
there is a victim who is also in need of justice.
So the criminal law is now expanded to include
not only the rights of the accused
but also area of study called victimology.
The development of victimology and
coinage for this idea of victimology
is because of the modern view of justice.
In addition to this, now there are another
some other category of justice seekers
like victims of natural or man-made disasters.
So these victims they have no right
against any other individual but
they have seeking justice against the state
for the suffering that they are undergoing.
Natural Disasters like Tsunami or Tufaan.
So these disasters, can be
the remedy can be provided through this modern view.
Man-made disasters like Bhopal gas tragedy
and questionably the Uttarakhand flooding,
now these things are going to be considered
under the new or modern view of justice.
Then comes the final saying on this
that is intended harm committed on a person,
un-intended harm committed on a person,
both have access to justice;
that is the modern view of justice.
So when this is the modern view
wherein a person there is a new category of people
who are seeking justice.
Now we need to expand the mechanism to provide justice.
So initially we felt or the system felt
that only court can dispense with justice.
But presently we are coming up with various other
specialized authorities to deal with the disputes.
So the now, there is a justice delivery mechanism
has expanded multifold;
along with the courts
we have special courts established
to deal with special kinds of disputes.
So there is SCST Atrocities Court
which is especially established to take care of
atrocities against SC and STs.
Family courts to take up
the disputes relating to the family,
so and so forth.
Now, there are tribunals
to take up highly technical disputes like
Telecom Regulatory Authority, TRAI
that takes up disputes
concerning telecommunication companies.
Similarly, we have consumer redressal forums
which is not may not be highly technical one
but it's a special forum
to look into the consumer disputes.
Company Law Board,
this is again a specialized agency to look into
the disputes relating to the companies.
So in addition to these tribunals
and special courts,
we have informal mechanism established,
informal systems established
by establishing mediation centres, conciliation centres,
court annexed conciliation,
court annexed mediation etc.
Unimpeded access to justice include free Legal Aid
which is the part of the first wave.
Class Action which is a part of the second wave.
Alternate Disputes resolution
which is the part of the third wave of reforms.
And then finally,
we are having a new category of people
who are looking into these kinds of requirements.
At the end, I want to speak of few concerns
connected with these justice delivery systems.
The first thing,
we still have not reached millions of people
whose rights are being continuously violated
but they cannot afford to seek redressal.
Similarly, I don't have any hesitation to mention
that the lack of access is nothing but denial of justice.
Legal rights have become illusory
because of this lack of access.
So the rule of law has become platitude
because of this lack of access.
And finally, this lack of access is leading to
lack of public confidence in this public,
public confidence in administration of justice.
Thank you very much.