Our society today is in a state of flux cities are changing, towns are growing, villages are

becoming computerized and nothing stays in fashion for long. Therefore, it is surprising that
same topic which has been spoken for number of years is the topic for discussion of this
seminar. It is equally surprising that the subject is even now as relevant as before and the
issue involved which will be addressed is still equally (if not more) pressing.
The issue of poverty and access to justice is something that has been talked about since the
birth of our country. People have congregated, discussed, debated and fought over this issue
and yet six years into the new millennium, with more than half a century of independence
behind us, here we are, talking about the same thing all over again. One would have expected
that in this fast-paced world we have created for ourselves, topics such as these would have
become outmoded. One would have thought that silent screams of the millions of voiceless in
our country would have halted by now. One would have thought that everything that had to
be said about the issue has already been said with nothing more for us to do.

Although the judiciary in India is independent of interference from the other two branches of
the government, several factors discourage or prevent victims to obtain access to justice in a
speedy and inexpensive manner.
1
To begin with, the number of judges and courts in India is
much lower as compared to other countries. What makes the situation worse that even this
limited number of sanctioned positions remains unfilled at all levels. The number of reported
vacancies in different courts, in fact, looks alarming: 4 out of 26 in the Supreme Court, 266
out of 866 in the High Courts, and 3,239 out of 16,158 in the District and Subordinate Courts.
This is one important factor, among others, contributing to huge backlog of cases.
2
The
situation has not improved much despite the relative success of Lok Adalats (the peoples
courts) that were provided a legal status by the Legal Services Authorities Act.



\

1
Galanter and Krishnan observe that the courts, and tribunals where ordinary Indians might go for remedy and
protection, are beset with massive problems of delay, cost, and ineffectiveness. March Galanter & Krishnan,
op. cit., note 318, p. 789.
2
Nick Robinson, Expanding Judiciaries: India and the Rise of Good Governance Court, in Washington
University Global Studies Law Review, Volume 8, 2009, pp. 20-27. See also Law Commission of India,
125th Report on the Supreme Court: A Fresh Look, 1988.
Legal and procedural obstacles for poor victims:
Mostly the legal framework at times, limits the scope of remedies available to the poor
victims. There are number of factors which impair the capacity of the rights of victims which
results in the delay of justice. And if at all they are sometimes able to cross this barrier, it
results mostly into the denial of it. Thus some of the obstacles are briefed as follows:
CORRUPTION: This very word in its due course has become a master of the evil
ways generated to get something done. A recent study by transparency international
has revealed that more than 52 percent of people have paid bribes.
3
Corruption almost
pervades in every field and thus results in a black economy. It prevails in all the
institutions that make, implement, and adjudicate the law.
4
Scams involving the
leaders of the country take the mass into awe. This includes even the police officers
and the judges. It seems that this factor prevails generally in the lower courts. Any
efforts made to draw in transparency and accountability is seen as interference in the
independence of the judiciary, wherein the RTI act has also failed to suffice the
purpose.
5
This kind of all persuasive corruption has generally got 2 effects. 1
st
that the
powerful may influence the judgements with their so called connections, and 2
nd
that
the victims might lose confidence and fear to seek redress for violations of their
rights.
LIMITED LEGAL AID, EXPANSIVE LITIGATION: no matter what, we would
definitely agree to the fact that litigation system in our country is very vast and
requires lot of expenses. Hence the victims dont prefer to seek redresses so as to save
the huge amount of money spent in the litigation process which includes the lawyers
fees and other miscellaneous expenses. Though the article 39 A of the constitution
talks about this very directive principle, The State shall [] provide free legal aid,
by suitable legislation or schemes or in any other way, to ensure that opportunities for
securing justice are not denied to any citizen by reason of economic or other

3
India Tops List of Countries where Bribery is way of life, in The Times of India, 9 December 2010,
http://timesofindia.indiatimes.com/india/Corruption-on-the-rise-54-Indians-paid-bribe-last-year/
articleshow/7071768.cms, accessed 18 February 2013.
4
Every sector of governance apparatus is marred by this problem with only certain variations in the level
of corruption. C Raj Kumar, Corruption and its Impact on Human Rights and the Rule of Law: Governance
Perspectives in Kumar & Chockalingam (eds.), op. cit., note 37, p. 153.
5
SC challenges HC verdict bringing CJI office under RTI ambit, in Indian Express 8
March 2010, http://www.indianexpress.com/news/sc-challenges-hc-verdict-bringing-cji-office/588254/,
accessed 3 February 2011. The Delhi High Court rejected this appeal of the Supreme Court. See, for an
analysis, Shayonee Dasgupta & Sakshi Agarwal, Judicial Accountability and Independence: Exploring
the Limits of Judicial Power, in NUJS Law Review, Volume 2, 2009, p. 779 at p. 789-793.
disabilities.
6
, the thing in practice is very limited. Furthermore, the concerned Legal
Aid Authority must be satisfied that such person has a prima-facie case to prosecute
or to defend.
7
Thus this act provides legal aid to very limited people.

IGNORANCE OF ONES RIGHTS AND INDIFFERENCE OF RIGHTS TO
OTHERS: Despite the economic boom in the recent past year, there are still 37
percent of the people who live below the poverty line. And hence the literacy rate is
also affected. When these 2 factors combine each other they give a serious challenge
for realisation of rights. Even when some people understand their rights some fail to
acknowledge the available legal mechanisms that can be employed to enforce these
rights. Either kind of ignorance is detrimental to effective access to justice

DELAY IN JUDICIAL PROCESS: this is very prevalent in the Indian scenario. This
situation might not be the same in the high courts of the larger states, but it definitely
has its way into the lower courts. One can easily imagine the number of years a victim
has to spend in litigation from the lower court to the Supreme Court. It is hence
justified to say that this monumental delay discourages victims from approaching
courts and thus denies them their rights of access to justice.

LACK OF LAWS AND LAX ENFORCEMENT: to sum up, India deals with both of
these facts. Law seems to lack behind in meeting the terms of the new technology.
Even if the need of the new law is recognised, there is no urgency to enforce it, and
the enactment takes years. And in some cases the law are even not notified and never
comes into force after the parliaments approval. The more serious problem is the
under or non performance of these acts. This fact was duly proved in the Bhopal gas
tragedy.

DIFFICULTIES IN CRIMINAL PROSEQUTION: Though Indian law allows the
people to be criminally liable for specific wrongs, prosecuting and convicting is not
easy in practice. The Bhopal case exemplifies this. Although the Indian courts have

6
See also Section 304 of the Code of Criminal Procedure 1973.
7
Legal Services Authorities Act 1987, Section 13. Section 2(a) of this Act stipulates that case includes a
suit or any proceeding before a court.
the power to order discovery
8
, the use of discovery process in practice is limited as
compared to a jurisdiction like the US.

WEAK IMPLEMENTS OF COURT JUDGEMENTS: even though some are able to
secure a favourable outcome, there is no guarantee that the order given by the court in
their favour will be clearly and properly implemented. There may be some clauses
which may be impractically stated. This weak implementation of the judicial orders
may be influenced by corrupt government or officials, who again pose a hindrance to
a victim seeking redress in the Indian law.


Judiciary and Access to Justice:
Judiciary has always striven to play a crucial role in making the concept of justice real for the
people at large. It has to continue with the task of justice delivery in its true sense & spirit
with particular emphasis on those consumers of justice who have been constantly deprived of
justice either on account of poverty or any other form of deprivation.
The judiciary is part of our democracy and all its implications must be imported into the
judicial process. Once we accept the proposition that in a democratic society the court system
plays a crucial role in seeing that neither licence nor absolutism becomes dominant, the
difficult tasks of the court vividly stare us in the face. As Chief Justice Burger has noted: "A
sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a
free people and three things could destroy that confidence and do incalculable damage to
society: that people come to believe that inefficiency and delay will drain even a just
judgment of its value; that people who have long been exploited in the smaller transactions of
daily life come to believe that courts cannot vindicate their legal rights from fraud and over-
reaching; that people come to believe the law - in the larger sense - cannot fulfil its primary
function to protect them and their families in their homes, at their work, and on the public
streets".
9


8
As provided by the Order XI, Rule 12 of the Code of Civil Procedure
9
http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2003010700561000.htm&date=2003/01/07/&prd=th
&
Constitution which mandates that the state shall secure that the operation of the legal system
shall promote justice, on a basis of equal opportunity and shall ensure that opportunities for
securing justice are not denied to any citizen. The Judiciary is bound to shape the processes
of the law to actualize the constitutional resolve to secure equal justice to all. A people who
are illiterate by and large, indigent in no small measure, feudal in their way of life, and tribal
and backward in large numbers, need an unconventional cadre of jurists and judges, if equal
justice under the law is to be a reality. If there is breach, judicial power must offer effective
shelter. Even if a legislation hurting or hampering the backward sector is passed, the higher
courts have to declare the statute void, if it be contra-constitutional. In sum, the judicial
process, in its functional fulfilment, must be at once a shield and sword in defending the
have-nots when injustice afflicts them. And this must be possible even if the humbler folk,
directly aggrieved, are too weak to move the court on their own and a socially sensitive
agency advocates the cause. Securing justice - social, economic and political to all citizens is
one of the key mandates of the Indian Constitution. This has been explicitly made so in the
Article 39-A of the Constitution that directs the State - to secure equal justice and free legal
aid for the citizens. But the experiences of last 57 years show that the State has failed
squarely on addressing some very basic issues--quick and inexpensive justice and protecting
the rights of poor and the vulnerable. The justice delivery system is on the verge of collapse
with more than 30 million cases clogging the system. There are cases that take so much of
time that even a generation is too short to get any type of redressal.
The Present Scenario:
There are about 10,000 courts in India .Out of these, one Supreme Court, 21 High Courts,
3150 District Courts, 4861 Munsif and 1st class Magistrate courts and 1964 2nd class
Magistrate courts are there. Besides, there are many tribunals. There are 4.04 crores cases
pending in different district courts across the country while there is a backlog of 34 lacks
cases in State High Courts. 1, 66, 77,657 criminal cases are pending before Magisterial courts
and 72,37,495 civil cases are pending in various subordinate courts. Again some of these
cases are as long as 25 to 30 years old. The longer a case runs, the more expensive it becomes
to pursue. Within the High Courts, maximum numbers of cases are pending in Calcutta,
Allahabad, Chennai, Mumbai and Kerala High court. Out of the pending cases in these High
Courts, 88 percent are civil cases and only 12 percent are criminal cases. Maximum numbers
of pending cases in lower judiciary are in U.P., Gujarat, Maharashtra, M.P., W.B. and
Karnataka.
It will take more than 300 years to clear the backlog of cases in Indian courts is proof enough
that our criminal justice system is sick, stagnant and in urgent need of a complete overhaul. A
committee was set up, a couple of years ago, under Justice V S Malimath to examine changes
and its report came, coincidentally, at the time that justice was finally done in the Uphaar
Cinema case
10
and just before the fourth anniversary, Jessica Lals horrific murder. Both
cases draw attention, in different ways, to the glaring flaws in our justice system.
In the Uphaar case it is shocking that it took six years to establish that the 59 people died
because of criminal negligence on the part of the cinema management and the Delhi
government. It was clear from day one that nobody would have died had the cinema followed
safety rules but because the wheels of Indian justice move at the pace of our national vehicle
- the bullock cart - it took six years for justice to be done. And, if the Ansal family and the
guilty officials decide to appeal it could be many more years before justice is really done.
In Jessica Lals case the situation is even more tragic because justice may never be done. She
was shot dead in a Delhi bar in full view of several people. It was on the basis of their
statements that the police built their case against Manu Sharma and he, himself, fled the
crime scene and remained on the run for days, something he would have been unlikely to do
had he been innocent. But, as time went by, witnesses to the murder suddenly became unable
to identify him as the killer so he is already out on bail and will probably remain free and go
on to a long and successful career as a politician.
11

To sum up the reasons for these defaults in our judiciary is a list of long issues which needed
to be dealt with active approach from government as well as judiciary. There is a serious lack
of judges to cope up with such large amount of cases in our courts.
Due to huge pendency, the cases take years for its final disposal, which would normally take
few months time. The arrears cause delay and delay means negating the accessibility of
justice in true terms to the common man. The very core of a civil society and rule of law is
the provision of justice, but the decision must be delivered within a reasonable time.

10
M.C.D. vs Asscn.,Victims Of Uphaar Tragedy AIR 1996
11
http://iecolumnists.expressindia.com/full_column.php?content_id=23229
It should also be kept in mind that not only Judges and Advocates be competent but also the
administrative and clerical staff. The clerical staff must be free from all type of corruption.
This is the era of computerization. The highly technical and competitive clerical staff will
also help in speedy course.
Nowadays, the crime investigation is not immune from the partisan politics. The power of the
government to drop criminal charges against the accused has further abused it. The lethargic
police investigation is also a ground of slow process of law.



Possible remedies

1. Increase in number of Judges:
There is need to establish more courts and to increase number of judges according to
population. While the population of the country and the number of cases has increased
manifold, the judgment services appears to be understaffed. Same is the position of the
courts, where numbers of courts are less in comparison to the need. As it is estimated that
India has, only about II Judges per million populations, this is among the lowest ratios in the
world. Obviously, there is an urgent need to increase the number of judges especially at the
local level for giving access to the ordinary people.
2. Indian Judicial Services
It is needed to establish a body at national level composed of Judges, Lawyers and Legal
academics, which should be charged with a duty to conduct examinations for recruitment to
Indian Judicial Service (IJS). Article 233 will have to be amended to confer power on the
president to appoint members of Indian Judicial Services on the recommendation of National
Judicial Service Commission. The creation of Indian Judicial Service is appeared necessary
to get best available talent in the country.
3. Special Courts
Though, already a demand of establishing large number of ordinary courts is pending, yet
special courts have its own importance. In developing countries the corruption is growing like
cancer and unless cases are taken up and decided early, the disease will spread further. The
special courts and prosecuting agencies may be appointed to deal with cases of corruption
and cyber crimes. The beginning may be made in Delhi and other state capital where the
number of cases is highest.
4. Infrastructure:
There is urgently need to improve the basic infrastructure and management of
resources. Modern technology and use of computers could also increase the efficiency of the
court system. The judiciary has also to learn management techniques through training at all
levels. Though, the Supreme Court and High Courts are having good infrastructure but this in
not the same position with lower courts. The lower courts are the basic institution of justice
and to improve the quality of the justice dispensed with, it is necessary to improve their
infrastructure by modern technology. Lack of funds should not be allowed to enter in the way
of development of infrastructure, as external security is necessary, internal maintenance of
law and order is also necessary for the internal security, national interest, peace and progress.
In general budget certain handsome amount could also be allocated to judiciary like defence
and education or a separate judicial budget should be placed, like railway budget. The panel
of government lawyer should also be on merits not on the basis of nearness to ministers. As
the government is the largest litigant, more transparency is required on their part. Govt.
counsel should be selected on the basis of merit, efficiency, integrity, by some transparent
manner. There should also be some permanent vigilance provision to observe the working of
the public prosecutors. Security system in courts also needs improvement for proper
confidence of people and fearless functioning of system. Information-counter should be set
up in every court for the convenience of litigating public.
5. Independent Investigation Agency
Our criminal justice system has the urgent requirement of Independent Investigative Agency.
Delay in police investigation is also one reason due to which cases linger on for years. It is,
therefore, good to create an independent wing of police force, fully in charge of crime
investigation, and functioning under the direct control of independent prosecutors. That wing
should be accountable to judiciary and not to particular government of a time. The practice of
torture and third degree methods, extra judicial execution in fake encounters may be stopped
also when crime investigation machinery became accountable to judiciary. Such type of
police wing also became knowledgeable about the type and method of the evidence needed.
Hence, baseless cases, which lead acquittal, also could come down. So, there should be co-
ordination between police and prosecuting agencies. The early disposal of case also boosts
the morals of police force and will save time, which would have been taken in producing
arrestee to the court Horn time to time.