This article is written by Harleen Kaur of 4th Year of B.A.LLB (Hons.) of UILS, Panjab University, Chandigarh, an intern under Legal Vidhiya
Every day, there are millions who turn to law for protection of their rights. Millions of other people who have rights but are not aware of the same. Such is the plight of most of the people today. Laws are made but if those laws do not protect those who need to be protected or when those people are not able to reach out to the legal system for help, such laws and legal system has failed. This means laws play a very important role in ensuring and promoting better access to justice. Legal empowerment is another such facet which is even integral to the concept of access to justice.
Hence, this article will focus on how law helps in ensuring better access to justice and promoting legal empowerment. It would try to provide better understanding of the same by focusing on various vulnerable groups in the Indian context and how the legal framework, policies and judicial decisions helped each of them.
KEYWORDS: access to justice, legal empowerment, legal aid, lok adalats, rule of law.
Every person has some rights vested in them by virtue of being a human being. These rights form the essence of a person and ensure them with a life of dignity. Still, for some people when these rights are violated. Justice remains elusive to them. Hence, access to justice and legal empowerment are very essential to the world today to eradicate injustices, exploitation or even marginalisation of certain groups.
Meaning of ‘Access to Justice’
Access to justice is an essential ingredient of rule of law. It means that people need to be able to access the justice system and legal processes to enforce their rights and responsibilities. Access to justice preserves human dignity and becomes a parameter for a good and effective legal system.
Access to Justice is central to ensuring legal empowerment. Laws are ineffective if citizens cannot use them to realise their rights, or if there are corrupt practices. There are certain groups in the society which are unaware of their rights. As a result, they face a lot of barriers when reaching out to the legal institutions. Moreover, these institutions are mostly remote and unaffordable. They lack resources and time. Sometimes, such groups are more susceptible to mistreatment and abuse by the justice system.
So, in order to ensure a non-discriminatory and less marginalised society, it is important to promote wider access to justice.
Meaning of Legal Empowerment
Legal empowerment is the most important aspect to address deficits in rule of law. It enables the citizens to be able to actively use the law to fulfill their needs and protect themselves against any form of injustices.
Legal empowerment interventions include the provision of legal aid and community paralegals, capacity building for both the citizens and state agencies.
There are five key principles to define legal empowerment, which are as follows:
a) Concrete solutions to instances of injustice
Legal empowerment aims to resolve the problems such as injustice, including intra-community disputes and abuses arising from traditional authorities. Constantly facing injustice and discrimination is a huge hit on a person’s morale. Legal empowerment works to help such individuals/groups to protect them against such situations.
b) A combination of litigation and high-level advocacy with more flexible, grass-root level tools
This includes the focus on community education, use of local advocacy, etc. with the aim to spread awareness. Knowing and understanding our rights is the first step in the process of legal empowerment.
c) A pragmatic approach to plural legal systems
Legal empowerment works towards engaging a wide range of providers, building linkages, etc. in order to be able to achieve the aim of empowering people and equipping them with enough information, and power to fight their battles.
Empowerment includes the process of cultivating power amongst people and providing them with an agency enough to represent themselves.
e) A balance between rights and responsibilities
It includes ensuring self-sufficiency by supporting community and self-help organs whilst advocating for the fulfilment of citizen obligations.
INTERNATIONAL SCENARIO WITH RESPECT TO ACCESS TO JUSTICE AND LEGAL EMPOWERMENT
The principle of Access to Justice was emphasized for the first time in International Covenant on Civil and Political Rights entered into force on March 23rd, 1976.
Article 2 of the Covenant states “each party to the Covenant will ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy”
Access to Justice was hence recognized as a fundamental human right. It emphasized that the access of justice is particularly critical for the indigent people all around the world, making it very important for initiatives to ensure legal empowerment among them as these people depend on support for basic needs of life and justice shall be counted as one of such needs.
India, with an estimated population of 1.37 billion, is the largest democracy in the world. Indian legal system is influenced by the common law due to its colonial past. Most of the laws in India are a by-product of the colonial era. Apart from that, personal laws also take up a prominent place such as Hindu and Muslim personal laws.
The legal system has evolved tremendously from its colonial past. India follows a uniform system of justice delivery. It is a three-tiered system—
Every day, there are millions in the country who have to turn to law for protection of their rights. The Indian Constitution guarantees equal treatment before law for all of its citizens.
Moreover, Article 39A provides for free legal aid, as a responsibility of the State towards the indigent and poor people. Under this Article, in order to endure legal aid, the Legal Services Authorities were established at the national, state, district and block level.
In reality, injustice is rampant all over the country.
As per the Report by Dasra, there is a need for focusing on the judicial system as a whole—including legal empowerment, legal aid, police and prisons. It emphasizes the necessary conditions to ensure access to justice for all in India. As provided by the report, there are four strategies to be implemented to achieve Access to Justice and promote legal empowerment:
- Understanding law, which is the first step to fight against injustice. This makes our rights accessible and comprehensible. An aware person is a powerful person.
- Ensuring high-quality affordable legal aid, as a good legal representation provides a strong chance at a trial. It benefits the weaker sections, who otherwise might not be able to procure legal representation for themselves. It includes ‘pro-bono’ legal aid as an example.
- Streamlining case management, as streamlining cases in the courts using technology or external expertise would help in effective disposal of cases while helping to deal with pendency.
- Supporting and driving accountability in the police and prison system, which would serve as a critical step towards ensuring access to justice. It is believed that this would helpful to introduce immediate reforms in the police and prison system.
How to advance universal access to justice, is a major problem facing India. It is believed that the answer lies mostly within the executive and judiciary. A lot of non-profit organisations and non-governmental organisations have taken the initiative to develop innovative and impactful strategies to strengthen the system by improving access for people.
More funding is needed to improve the situation by providing better legal aid. It is emphasized that it would be better to strengthen our system by internal investment such as through Indian philanthropy and corporates, giving the citizens a chance to connect and strengthen their own democracy for them to feel better connected with it.
Standalone strategies do not work in the long run. There is a need for a comprehensive effort and collaboration for a shared vision of future.
Keeping all this in mind, the Ministry of Law and Justice along with United Nations Development Programme (UNDP) started the ‘Project Brief on Access to Justice for Marginalized People’ which described access to justice as including the ‘right to live within an environment of rights where such rights are effectively protected. Within this broad paradigm, access to justice includes two major concerns:
a) guaranteeing human rights
b) ensuring capacity development for both citizens and state institutions
There is a need to understand the specific local contexts where the marginalized communities in order to make them aware about their rights. The knowledge of one’s rights is how an individual can express their needs and priority issues that lead towards justice.
STAKEHOLDERS WHO INFLUENCE ACCESS TO JUSTICE
There are many stakeholders who influence the access to justice such as:
- the community members who are at a disadvantage in the legal system
- civil society organisations
- government officials and panchayat members
- police authorities and prison system
- ministries and law commissions
- lok adalats
- legal service authorities under courts
- law schools, and
- influencers such as teachers
REPRESENTATION OF MARGINALISED GROUPS IN INDIA UNDER THE LAW
There are a lot of groups which are marginalized in India with lack of access to justice. These groups are very vulnerable and are as follows:
The youth in any country is considered to be a very vulnerable group as they are more often than not easily swayed and manipulated. In India, the youth has been provided protection under law to legally empower them and ensure proper access to justice. A few examples of the same are:
Article 21A of the Constitution provides for the Right to Education. It provides that every child in the country has the right to gain elementary education (6-14 years). Education has the power to inspires everyone. So, being educated builds a foundation for a more aware youth who would be able to stand up for themselves.
Article 23 provides for the Right against Exploitation.
Article 14 provides that no child under the age of fourteen years shall be engaged in any factory or any other hazardous work.
There have been numerous legislations passed by the government to empower the youth of the nation, protect their rights and provide them with a platform to raise their voice. A few of these legislations are:
- Children Pledging of Labour Act, 1933
- The Immoral Traffic (Prevention) Act, 1987
- Child Labour (Prohibition and Regulation) Act, 1986
- Prohibition of Child Marriage Act, 2006
- Right of Children to Free and Compulsory Education Act, 2009
- Protection of Children from Sexual Offences Act, 2012
While India ensures a constitutional and judicial framework to protect the rights of the children but legal reform alone cannot bring change in the situation of children. So, there is a need to do a lot more beginning with the proper and wider implementation of the laws. Ensuring awareness of these rights would be what actually empowers the targeted group.
- POOR AND BACKWARD COMMUNITIES
The poor communities and backward groups of India understandably suffer from a lot of disadvantages and injustices. In order to improve access to justice for them, Indian legal system provides for the following provisions to legally empower them:
Article 14 provides for equality before law and equal protection of law for all.
Article 15 and 16 empowers the State to make special provisions for the backward sections of the society—socially, economically and educationally backward groups.
Article 21 provides for protection of life and personal liberty. Life means and includes living with dignity as well. Moreover, it was held in the case of Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nandkarni that right to life also includes right to livelihood.
Article 39A ensures free legal aid to the poor and indigent of the society. It is the responsibility of the State to provide the poor person, who cannot procure legal representation, with free legal aid. In the case of Sheela Barse v. State of Maharashtra, it was observed that it is necessary to provide the poor with free legal aid. It is their right not only under Article 39A but also article 14 and 21.
Legal empowerment is not possible when the poor people of the country are unable to access the justice system. Equitable access to justice is important but it is hardly possible if the laws are not implemented properly. Legal empowerment with respect to this facet must include-
a) Due consideration to the rights and issues of the poor strata given by the courts,
b) A control of the State over authorities to ensure that they protect the poor and not exploit them,
c) Institutionalized access to legal services for the poor to spread awareness amongst them to be able to utilize them aptly.
The Constitution of India grants equality to all and also empowers the State to make any special provisions to improve the status of women by protective discrimination.
Apart from these, article 16, 39(a), 39(b), 39(c) and 42 of the Constitution also work for the legal empowerment of women to ensure better access to justice for all the citizens equally. As per the 73rd Constitutional Amendment Act of 1992 ensure one-third of the total seats for women in all the elected offices in local bodies whether in rural areas or urban areas.
Moreover, Indian Penal Code also lays down certain specific provisions for women such as Section 376 (Rape), Section 304-B (Dowry Death), Section 354 (Molestation), Section 509 (Sexual Harassment), etc.
There are some legislations enacted by the government for women. A few of those are as follows:
- Dowry Prohibition Act, 1961
- Immoral Traffic (Suppression) Act, 1956
- The Protection of Women from Domestic Violence Act, 2005
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
- The Medical Termination of Pregnancy Act, 1971 (amended in 1975 and 2002)
The National Commission for Women was established by the Government of India as a statutory body in January 1992 with the objective to represent the rights of women and to provide them with equal access to justice by giving them a platform to raise their voice.
The National Policy for Empowerment of Women was laid down by the Department of Women and Child Development in the Ministry of Human Resource Development in 2001. Again, the goal is to empower women from all walks of life by engaging all stakeholders in realization of its goals.
Over time, there have been a lot of landmark judgements which brought hope to several women, ensuring their right to dignity and equality.
In Vishaka v. State of Rajasthan, the Supreme Court laid down guidelines to define sexual harassment at workplace and making the working environment safe for women.
The case of Laxmi v. Union of India brought a lot of significant changes to curb the offence of acid attacks by imposing stringent regulations on the sale of acid such as requirement of identity proof of the buyer along with the need to purchase the same. Such details are to be submitted to the police within three days.
The legal framework in India with regards to the empowerment of women is advancing to keep up with the changing times. However, it has not proved to be enough to actually protect women or provide them with a voice, as was envisioned with almost every provision. The lack of awareness, the violence against women, stigma attached to women victims, etc. , all these need to be tackled in order to see improved access to justice for women and for them to become empowered.
The third gender in India has faced a lot of challenges over all these past years. Even the right to vote was given to the transgenders in 2009 but true meaning to its implementation was given on 5th November, 2013 when the parents were allowed to register the sex of the children as ‘not specified’ in case of children with intersex variations.
But then finally in 2014 under the National Legal Services Authority v. Union of India, the Supreme Court recognized the third gender category in the eyes of law. It provided that as per Article 14, 15 and 16 of the Constitution, a person should not only be restricted to the dual concept of man and woman. Also, every person under Article 21 has the right to live a life with dignity.
Moreover, Navjot Singh Johar v. Union of India was another landmark judgement as it decriminalized Section 377, IPC in so much as where it criminalized voluntary sexual intercourse between two adults of same sex. It was found to be violative of right to privacy, equality, freedom of expression and protection against discrimination. This case recognized the right of sexual autonomy in India.
Access to justice is one of the most important issues when talking about the legal framework in a country. The laws are meant to protect the rights of the citizens. For this basic goal to be achieved, it is necessary for the citizens to be able to access those lows, the judicial system and authorities implementing the same. Especially, in a democracy such as India, it is the basic right of every individual to have a voice. There are some groups which are more vulnerable than the others. This means such groups need to be provided with better opportunities, awareness, etc. Legal empowerment is an essential tool to ensuring better access to justice. This is very important in order to establish rule of law.
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