As Robert Southwell said-
“…creeping snails have the weakest force…”
The doctrine of Access to Justice, finds its origin through a confluence of several other concepts, most prominent of them being the principles of Ubi jus ibi remedium and the Equality before Law.
This age-old principle simply means where there is a right, there is a remedy. Thus, every right when it is breached must be provided with a right to a remedy. As and when a person’s right is violated, it is the obligation of the State to make available, to him or her, the means to get the violation rectified and thereby claim justice.
The second important foundational principle of the right to Access to Justice is Equality before the law. This principle can be best explained in the words of Mr. Thomas Fuller, who over three hundred years ago said:
‘Be ye never so high, the law is above you.’
Thus, any and every citizen of the country, however powerful, is equal before the Law. This principle, you all must be aware, is enshrined in Article 14 of the Constitution of India. As per this principle every person shall have access and recourse to justice and no one shall be subjected to any kind of discrimination to avail justice.
Role of Preamble
Justice-social, economic and political, is a preambular precept under the Constitution of India. The guarantee of equality of law and equal protection of law lies at the very kernel of our democratic set up.
At present, let me inform all of you, that it had been recommended by the Commission to Review the Working of the Constitution to incorporate Access to Justice as an express fundamental right as done in the South African Constitution, 1996 by virtue of Article 34 of the South African Constitution and accordingly, insertion of Article 30-A titled ‘Access to courts and tribunals and speedy justice’ was proposed by the Commission, for lifting the right to Access to Justice to the pedestal of Fundamental Rights.
As of today, the recommendation has not yielded effect, as the proposed Article 30-A has not been inserted. But, that has not stopped the Supreme Court of India from acknowledging the Right to Access to Justice as a part of the right to life under Article 21 of the Constitution of India.
The Supreme Court has interpreted the word ‘life’ appearing in Article 21 of the Constitution to mean a bundle of rights which are considered to be incidental or integral to the right to life so as to make life worth living.
The Constitution Bench in Anita Kushwaha case while delineating on the concept of Access to Justice, specified the main facets constituting the essence of this concept as:
(i) the State must provide an effective adjudicatory mechanism;
(ii) the mechanism so provided must be reasonably accessible in terms of distance;
(iii) the process of adjudication must be speedy; and
(iv) the litigant’s access to the adjudicatory process must be affordable.”
The next essential facet of the doctrine of Access to Justice, as laid by the Supreme Court in Anita Kushwaha’s case is the need to ensure that the adjudicatory apparatus is accessible to the populace in terms of distance. This duty falls within the sphere of the executive. The executive branch of the State is required to provide accessible forums/Courts where disputes can be adjudicated, for under our constitutional scheme, it is the executive who is in-charge of the wallet, that is, the finances.
It is heartening to note that over the past six decades or so the number of courts established in the country has increased manifold in comparison to the number that existed on the day the country earned its freedom.
Therefore, it is for each and every member of the legislature, the executive, the judiciary, the present members of the Bar, as well as you all students, who shall become the future torchbearers of the nation, to exhibit an unflinching allegiance to the cause of right to Access to Justice and thereby sincerely play their role in the justice-dispensation system of the nation.