Access to Justice under the Indian Legal System

Access to justice under the Indian legal system

The Indian legal system is a complex system which in its structure and operation is unfairly weighed against the poor and the marginalized. There are many vast areas of continuity from the colonial system into the post colonial era right from the criminal justice system to the various laws and regulations which have remained in place in the post-colonial era. The one significant change is the Constitution which becomes the benchmark on which colonial laws can be tested and if found repugnant to the Fundamental Rights repealed. The laws and systems in place since the colonial era, they exemplify at the same time the authoritarian face of law while at the same time providing some space to negotiate the system. E. P. Thompson called the rule of law an unqualified human good and this module will seek to see what the possibilities are of accessing justice under the Indian Legal System.

Justice for the marginalized through the working of the Indian legal system always means your ability to mobilize and move the system to work for you. The negotiating power and influence of marginal groups like street children, street hawkers, slum dwellers as well as sex workers is limited. It is in this context that NGO’s, civil liberties groups, and social movements play a significant role in expanding the access to justice for the marginalized.

This module seeks to critically examine how the access to justice is sought to be expanded and the significant hurdles in the path of such expansion of access to justice.

The systems we will broadly examine critically in this section are the executive, legislature, judiciary, other systems such as the NHRC and international mechanisms.

Under the executive are the following entry points: (a) the drafting of policy, (b) drafting of rules (delegated legislation) (c) using ADR mechanisms such as help-lines such as the Elder’s Help-line in Bangalore and (d) using the constitutional provisions on decentralization. Under the legislature is the role that interventions can play through law reform processes. However, one must examine these processes critically using the experiences of the feminist movement. Under the judiciary, is the role that PILs have played in enabling a greater democratic space for the marginalized communities. At the level of the trial courts, the key democratizing impulse has come from lawyers’ collectives which operate in different parts of the country. The response of the National Human Rights Commission to the genocide in Gujarat is a example of how other state systems can be mobilized to intervene in situations of mass human rights violations. The other Commissions with respect to women, minorities, SC/ST’s are the other state institutions which play a role in accessing justice. Finally we will look at the role that international processes and instruments can play in enabling access to justice.

We will finally examine legal education and the role that it can play in enabling access to justice through a concrete study of the National Law School as an institution.