Access to Justice- An Invaluable Fundamental Right


The concept of “access to justice” as an invaluable human right, also recognized in most constitutional democracies as a fundamental right, has its origin in common law as much as in the Magna Carta. The Magna Carta lays the foundation for the basic right of access to courts in the following words:

“No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.

To no man will we sell, to no one will we deny or delay right to justice.”

The Universal Declaration of Rights drafted in the year 1948 gave recognition to two rights pertaining to”access to justice” in the following words:

Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law.

Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him.

To the same effect is Clause 3 of Article 2 of International Covenant on Civil and Political Rights, 1966 which provides that each State party to the Covenant shall undertake that every person whose rights or freedom as recognised is violated, shall have an effective remedy and to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, and the State should also ensure to develop the possibilities of judicial remedies.

Prof. M. Cappelletti Rabel a noted jurist in his book”Access to Justice” (Volume I) explained the importance of access to justice in the following words:

“The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most “basic human right” – of a system which purports to guarantee legal right.”

English Law on Access to Justice as a Fundamental Right:

Courts in England have over the centuries post-Magna Carta developed fundamental principles of common law which are enshrined as the basic rights of all humans. These principles were over a period of time recognized in the form of Bill of Rights and Constitutions of various countries which acknowledged the Roman maxim ‘Ubi Jus Ibi Remedium’ i.e. every right when it is breached must be provided with a right to a remedy. Judicial pronouncements have delved and elaborated on the concept of access to justice to include among other aspects the State’s obligation to make available to all its citizens the means for a just and peaceful settlement of disputes between them as to
their respective legal rights.

In R. v. Secretary of State for Home Dept., ex p Leech 1993 [4] All ER 539) Steyn LJ said:

“It is a principle of our law that every citizen has a right of unimpeded access to a court.”

In Raymond v. Honey 1983 AC 1: 1982 [1] Alt ER 756 Lord Wilberforce described it as a “basic right”. Even in our unwritten Constitution, it ranks as a constitutional right.

Access to Justice: Indian Context

The legal position is no different in India. Access to justice has been recognised as a valuable right by courts in this country long before the commencement of the Constitution. Reference in this regard may be made to Re: Llewelyn Evans AIR 1926 Bom 551 in which Evans was arrested in Aden and brought to Bombay on the charge of criminal breach of trust. Evan’s legal adviser was denied access to meet the prisoner. The Magistrate who ordered the remand held that he had no jurisdiction to grant access, notwithstanding Section 40 the Prisons Act, 1894. The question that therefore fell for consideration was whether the right extended to the stage where the prisoner was in police custody. The High Court of Bombay, while referring to Section 340 of the Code of Criminal Procedure, 1898, held that the right under that provision implied that the prisoner should have a reasonable opportunity, if in custody, of getting into communication with his legal adviser for the purposes of preparing his defence. Madgavkar, J., comprising the Bench added that:

“….if the ends of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case and to lay its evidence fully, freely and fairly before the Court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice if it is made with the aid of skilled legal advice-advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very state which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance.”

Reference may also be made to P.K. Tare v. Emperor AIR 1943 Nagpur 26. That was a case where the Petitioner had participated in the Quit India Movement of 1942. The detention was challenged on the ground of being vitiated on account of refusal of permission by the authorities to allow them to meet their counsel to seek legal advice or
approach the court in person. The State opposed that plea based on Defence of India Act, 1939, which, according to it, took away right of the detenu to move a habeas corpus petition Under Section 491 of the Code of Criminal Procedure, 1898. Rejecting the contention and relying upon the observation of Lord Hailsham in Eshugbayi v.Officer Administering the Govt. of Nigeria, the court held that such fundamental rights, safeguarded under the Constitution with elaborate and anxious care and upheld time and again by the highest tribunals of the realm in language of utmost vigour, cannot be swept away by implication or removed by some sweeping generality. Justice Vivian Bose, giving the leading opinion of the court explained that the right to move the High Court remained intact notwithstanding the Defence of India Act, 1939. He further held that although courts allow a great deal of latitude to the executive and presumptions in favour of the liberty of the subject are weakened, those rights do not disappear altogether. The Court ruled that the attempt to keep the applicants away from the Court under the guise of these Rules was an abuse of the power and warranted intervention. Justice Bose emphasized the importance of the right of any person to apply to the court and demand that he be dealt with according to law. He said:

“…the right is prized in India no less highly than in England, or indeed any other part of the Empire, perhaps even more highly here than elsewhere; and it is zealously guarded by the courts.”

What are the Fundamental Rights? Click here to read.

Supreme Court of India on Access to Justice:

Decisions of the Supreme Court of India to have unequivocally recognized the right of a citizen to move the court as a valuable constitutional right recognized by Article 32 of the Constitution as a fundamental right by itself.

In Hussainara Khatoon v. State of Bihar: (1980) 1 SCC 81 Supreme Court declared
speedy trial as an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. It also pointed out that Article 39A made free legal service an inalienable element of reasonable, fair and just procedure and that the right to such services was implicit in the guarantee of Article 21.

In Brij Mohan Lal v. Union of India and Ors.: (2012) 6 SCC 502 Supreme Court
declared that Article 21 guarantees to the citizens the rights to expeditious and fair trial.
The Court observed:

“Article 21 of the Constitution of India takes in its sweep the right to an expeditious and fair trial. Even Article 39A of the Constitution recognizes the right of citizens to equal justice and free legal aid. To put it simply, it is the constitutional duty of the Government to provide the citizens of the country with such judicial infrastructure and means of access to justice so that every person is able to receive an expeditious, inexpensive and fair trial. The plea of financial limitations or constraints can hardly be justified as a valid excuse to avoid performance of the constitutional duty of the Government, more particularly, when such rights are accepted as basic and fundamental to the human rights of citizens.”

In Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar and
Ors.: (2009) 2 SCC 784, Supreme Court declared that an aggrieved person cannot be
left without the remedy and that access to justice is a human right and in certain situations even a fundamental right.

To sum up, access to justice is and has been recognised as a part and parcel of right to life in India and in all civilized societies around the globe. The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens. The Magna Carta, the Universal Declaration of Rights, the International Covenant on Civil and Political Rights, 1966, the ancient Roman Jurisprudential maxim of ‘Ubi Jus Ibi Remedium’, the development of fundamental principles of common law by judicial pronouncements of the Courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilized societies and systems recognise and enforce.

Meaning of the term “Life”:

Supreme Court has by a long line of decisions given an expansive meaning and interpretation to the word 'life' appearing in Article 21 of the Constitution. In Maneka Gandhi v. Union of India: (1978) 1 SCC 248, Supreme Court declared that the right to life does not mean mere animal existence alone but includes every aspect that makes life meaningful. In Khatri II v. State of Bihar: (1981) 1 SCC 627, the right to free legal aid was held to be a right covered Under Article 21 of the Constitution. In Prem Shankar Shukla v. Delhi Administration: (1980) 3 SCC 526 the right against handcuffing was declared to be a right Under Article 21. In Sheela Barse v. Union of India: (1988) 4 SCC 226, Supreme Court declared speedy trial to be an essential right Under Article 21.

Given the fact that pronouncements mentioned above have interpreted and understood
the word “life” appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside the class and category of the said rights, which already stands recognised as being a part and parcel of the Article 21 of the Constitution of India.

A Constitution bench of the Supreme Court in Anita Kushwaha and Ors. vs. Pushap Sudan and Ors.: (2016) 8 SCC 509 held as follows:

“If “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed Under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet of right to life guaranteed Under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed Under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also. We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where law is applied and justice administered. The Citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws. Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion. Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.”

Supreme Court in Anita Kushwaha and Ors. vs. Pushap Sudan and Ors.: (2016) 8 SCC 509 has thus held that the following four main facets, constitute the essence of access to justice are:

  1. The State must provide an effective adjudicatory mechanism;
  2. The mechanism so provided must be reasonably accessible in terms of distance;
  3. The process of adjudication must be speedy; and
  4. The litigant’s access to the adjudicatory process must be affordable.

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