VULNERABILITY AND ACCESS TO JUSTICE

INTRODUCTION
Justice, in layman sense, refers to fairness or impartiality. The narrowest conception of “access
to justice” can be defined as an individual’s formal right to litigate or defend himself. As we all
know that justice is important to everyone, but at the same time it can also be observed that it a
perspective-based concept as justice to one can be an injustice for the other from his point of
view. Justice is one of the most important values in the scopes of legal and political sector of the
society. Legal and political systems that maintain law and order are necessary to the society but
they can only work efficiently if and only they achieve justice
Saint Themis (The Patron saint of Lawyers), who is portrayed as a blindfolded Lady with a scale
in one hand and a sword in the other and is the epitome of divine order and natural law.
Unfortunately, tables have turned upside down now and what we can witness is biasness and
discrimination when things revolve around justice and judiciary.
Every person born inherits equal dignity and rights therefore should enjoy equal access to justice
when their dignity or their rights are infringed. However, prejudiced justice systems can
challenge the basic human rights principle. When the judicial structure fails to deliver or provide
access to justice to all, the vulnerable and marginalized suffers the most, and their human rights
are placed at risk.

ACCESS TO JUSTICE
Access to justice means to reach justice efficiently and effectively by legal proceedings in
appropriate time. Justice delivered should be impartial and non-discriminatory and it is the duty
of the state to take all important steps to provide transparent, fair and effective service that
promote access to justice for all. Access to justice gives life and meaning to law.
Access to justice is an integral part of Article 14 which guarantees equality before law and equal
protection of laws. If in accessing justice, anyone has to come across with barriers and
impediments, the equality clause in our Constitution becomes a mere promise on paper.
Everyone needs and will need this access in order to assert and defend their fundamental rights
and their freedoms including to safety, security and health. So, in a judiciary where access is
suppressed and the judicial structure does nothing to eliminate the obstacles, such a system
ceases to be an independent judicial system.
Law is the path and justice is the end and in order to achieve that end the law must have solid
legal system which needs to be accessible to all.
Illegality and Injustice can cause a major impact on vulnerable or marginalized populations as
they are constrained in seeking redress. They don’t have proper resources and proper knowledge
of the functioning of this whole Judicial structure. The poor and marginalized sections of society
are victims of criminal acts including human rights violations. So, they are on the backfoot from
the beginning of the process. Justice mechanisms can be used as effective tools to end this cycle
of deprivation and rights violations while simultaneously reducing the risks associated with
conflict.

VULNERABLE AND MARGINALIZED GROUPS

In general, the term ‘Marginalization’ means a process in which a group or a community is
treated differently or insignificantly or disabling them from enjoying their rights as compared to
others and pushing them to the edge in a society. The main reason for their exclusion from the
society is their helplessness to fulfil the needs of the society.
India is a democratic country of 1.3 billion of population and is a multi-cultural, multi-linguistic,
multi- religious secular country. Within this 1.3 billion, the Constitution of India acknowledges
socially marginalized communities based on the Caste they belong to. On the basis of caste,
Scheduled Castes (SC), Scheduled Tribes (ST), Other Backward Classes (OBC) and the religious
minorities, and also women are marginalized in the field of education.1
Any person regardless of Sex, Religion, Caste, Disability, Occupation etc. has a right to
approach the courts whenever their right is infringed. Article 39A mirrors this commitment by
imposing a duty on the State to secure that the operation of the legal system promotes and
provides justice on the basis of equal opportunity. Articles 14 to 32 included in Part-III of the
Indian Constitution relating to the Fundamental Rights make it obligatory for the State to ensure
equality before the law or equal protection of the laws within the territory of India. Article 32 &
Article 226 deals with the rights to constitutional remedies including the right to move the
Supreme Court & High Court respectively for the enforcement of fundamental rights.
In Anita Kushwaha v. Pushap Sudan 2, Supreme Court held access to justice a facet of right
guaranteed under article 14 and 21 of the constitution of India. Hence, Access to Justice is an
assurance that the people have a right to have their grievances redressed, and a right to pursue
their legal remedies through the legal framework so as to ensure that their rights are protected.
The major concern about different developing nations is that there is a major section of the
people who falls below the poverty line. They are not only deprived of the basic needs like
health, education, employment but are also denied justice and equity. One of the serious
concerns regarding the protection of rule of law and human rights is the incapability of the
justice system to deliver speedy and affordable justice to the poor.

Most vulnerable marginalized groups in every society are:

1
Ministry of Minority Affairs, Report on National Commission for Religious and Linguistic Minorities,
http://www.minorityaffairs.gov.in/sites/default/files/volume-1.pdf
2
AIR 2016 SC
1. People with Disability:
The % of the disabled population is about 2.13 percent of the total population i.e.,21.9
million. Disability occurs by virtue of nature not by choice. But our so called ‘Well-
educated society’ doesn’t think so and the stereotypes which they carry with themselves
hampers directly or indirectly the Disabled Persons which pushes them to the edge of the
society.

Article 1 of the United Nations (UN) Convention on the Rights of Persons with
Disabilities (CRPD) defines ‘persons with disabilities’ as including: ‘those who have
long-term physical, mental, intellectual or sensory impairments, which in interaction with
various barriers may hinder their full and effective participation in society on an equal
basis with others.

Disabled people face different barriers and a lot of discrimination when it comes to
employment, education, health services and other socio-economic opportunities.
The Indian Constitution safeguards freedom, justice and dignity of all individuals and
indirectly appeals for a comprehensive society for all including the persons with
disabilities.

2. Schedule Caste & Schedule Tribe:

When it comes to marginalization, another stigma which is prevailing in our society is the
Caste system. Because of irrational fear and biased assumptions, the people belonging to
SC & ST are still suppressed in our society regardless of the reservations provided by the
state.

The Primary source of income for the major population of this community depends on
works which involves labor like industrial labors, labors involved in agriculture, casual
labors etc. which has resulted in poverty among them. Women belonging to these
communities faces exploitations like rape, violence, sexual abuse etc. just because of the
caste discrimination.

The marginalization or differentiation based on caste influences every scope of their life,
by violating basic human rights. These communities face various challenges at each stage
of access to justice which includes difficulty in registration of complaint, delay in
investigations, lack of awareness of rights and court process etc. due to illiteracy and
poverty.
 3. Women:
Constitution of India guarantees equal dignity and rights to men as well as women yet our
society seems a bit reluctant about this fact. Women of our so called ‘Developing
Country’ faces a lot of criticism and discrimination in fields like job, education, etc. Just
enacting rights-based laws on domestic violence, equal right to property and inheritance,
provision for equal pay etc. is not going to make a big change unless and until we focus
on its implementations.

Women and girls are subjected to rape, sexual abuse, harassment, domestic violence etc.
and the shocking fact is that the rate of these cases is rapidly increasing in the educated
urban cities and towns than rural areas. And a no. of cases goes unreported just because
of the fear of complicated procedures and delayed trials. A very well said quote given by
Martin Luther king Jr. is “justice too long delayed is justice denied”.

Women and girls who are survivors of sexual violence both with and without disabilities
face obstacles in getting justice in India and around the world 3. The lack of accountability
in the justice delivery system acts as a reason for women hesitancy. Laws should have
been monitored and evaluated more effectively.

4. Aged People:
Growing old is a very natural and inexorable process in life. According to Population
Census 2011 there are nearly 104 million elderly persons (aged 60 years or above) in
India; 53 million females and 51 million males. A report released by the United Nations
Population Fund and HelpAge India suggests that the number of elderly persons is
expected to grow to 173 million by 2026.

The vulnerability among the elders is not mainly due to an increased rate of illness with
growing age but also due to their economic dependency upon their spouses and children.
Because of very few economic dependences has an impact on their access to food,
clothing, and healthcare. Among the basic needs of the elderly, medicine features as the
highest unmet need. Healthcare of the elderly is a major concern for society as aging is
often accompanied by multiple illnesses and physical ailments.

5. Children:
Development of a child is very crucial in every child’s life and if proper care and
attention given in right way after that child grows in practical manner. When our
constitution guarantees human rights, it is also applicable on children also.

3
Karolina Kozik, ‘The Long Wait for Justice for Women in India’ (Human Rights Watch, 8 March 2019)
 Mortality and illness among children are caused and combined by poverty, their sex and
caste position in society. In today’s world, children experience sexual abuse, violence,
child labor, discrimination etc. and lack of awareness and resources are causing more and
more case of such acts.

According to Indian Constitution, the state has an obligation to provide education to them
in order to develop and maintain equality among them. In Unni Krishnan vs. State of
AP4, Right to education for children between 6-14 years was considered as a
fundamental right in 2002. Among children, some face different forms of discrimination
while working as street children and children of sex workers.

6. Under trial detainees:

Sec. 482 read with 483 of Cr. P.C puts that every possible measure should be taken to
dispose of the case within 6 months by the state. It is also the responsibility of the
judiciary to keep a check and balances on under trial detainees and bring them to trial. A
huge number of cases pending, insufficient resources cannot be the reasons for
deprivation of rights of a person.

Our Constitution also extends support to strengthen the concept of access of justice under
article 22 which provides no person who is arrested should be detained in custody
without being informed as soon as may be of the grounds for such arrest nor shall he be
denied the right to consult and to be defended by a legal petitioner of his choice

In Hussainara Khatoon v. State of Bihar 5 which formed the basis of the concept of the
Speedy Trial, it was held by the judges that under trial prisoners who have been in jail for
duration longer than prescribed, if convicted, their detention in jail is totally unjustified
and in violation to fundamental rights under article 21.

PROVISIONS RELATED TO THE CONCEPT OF ACCESS TO JUSTICE IN INDIA &

IMPORTANT INTERNATIONAL PROVISIONS

The Constitution of India believes in Equality, Justice and freedom to all. In a society
where the working and structure of legislation is so complex and the people from
vulnerable groups often find it difficult to understand what rights he has and how to
defend himself in a court, so the fundamental rights come into the picture and these rights
hold highest importance. Some major hurdles in the pathway of administration of justice
is delay because of pending cases, cumbersome process and costly.

4
1993 AIR 2178, 1993 SCR (1) 594
5
1979 AIR 1369
 1. Preamble
The Preamble of the Indian Constitution aims at providing social justice, economic
justice and political justice to all of the citizens and gives an idea that justice should be
brought with fairness and impartiality. Here, Social Justice means equality among others
irrespective of caste, sex, race etc. Economic Justice means availability of economic
resources to all the citizens. Political Justice means equality of political rights to all the
citizens like right to contest elections, right to vote etc.

2. Article 21 of Indian Constitution (Right to Life)

According to Article 21 of the Indian constitution, no person shall be deprived of his life
or personal liberty except if that procedure is established by law and that procedure
should be reasonable and fair. The scope of free legal aid was recognized in the landmark
case of Hussainara Khatoon vs State of Bihar.

Legal aid means a free representation of a poor or weaker section in a court of law at
expense of state. In M.H. Hoskot v. The State of Maharashtra6, Supreme Court ruled
that free legal aid to the poor, at the cost of State even to an accused, who could not
afford legal services due to poverty was part of fair, just and reasonable procedure
implicit under Article 21.

3. Article 14 of Indian Constitution (Right to equality)

According to Article 14, there shall be an Equality before Law and the State shall not
deny that equality and the equal protection of the laws within the territory of India. This
article means equal treatment among equals. The Citizen’s inability to access courts
provided for determination of rights results in denial of the guarantee contained in Article
14.

Audi Alteram partem is a concept which goes hand in hand with Article 14 of the
Constitution which means that the other party must be heard so that the justice should not
be questioned afterwards. It expects from the state to ensure that every party gets the
chance to step up and present itself before the court of law.

4. Article 32 of Indian Constitution

Article 32 which is also known as the heart of the constitution enshrines us with the
concept of PIL (Public Interest Litigation). PIL was introduced to so that to extract justice
to poor, the illiterate and needy who have no access to justice or had been denied justice.
This is one of the best tools to the vulnerable groups to achieve justice.

5. Directive Principles
6
AIR 1978 SCC 1548
 Part IV of our Constitution provides with Directive Principles which are the guiding
principles for a state but can’t be enforced in the court of law. The concept of Access to
Justice is provided in Article 38 and Article 39A which was added by the 42 nd
Constitutional Amendment Act.

According to Article 38 of the Constitution, the state has to encourage a social order in
which social, economic and political justice is ensured. Social justice is an active tool to
lessen the sufferings of the poor, weak and other deprived communities of the society.

According to Article 39A of the Constitution, the State to ensure that the legal system
promotes justice and that the State must provide free legal aid so that justice is not denied
to a citizen because of economic incapacity and other disabilities. It is the duty of the
state to provide justice to every person regardless of his/her status.

6. International Provisions
 The Universal Declaration of Rights which was drafted in 1948 introduced two
rights which were related to the concept of access to justice. Article 8 of the
Declaration stated that everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted to
him by the Constitution or by law. Article 10 of the declaration stated that
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.

 According to Article 14 (3) of International Covenant on Civil and Political Right,

the right to be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have legal
assistance, of his right; and to have legal assistance assigned to him in any case
where the interests of justice shall require, and without payment by him any such
case if he does not have sufficient means to pay for it.

 The Ministry of Law and Justice has been trying to implement the concept of
Access to Justice with the help of United Nations Development Program (UNDP).
This program is introduced to empower the poor and the marginalized
communities of the society so that they could pursue justice effectively.

 Article 13 of the Convention of rights of persons with disabilities states that state
Parties shall ensure effective access to justice for persons with disabilities on an
equal basis with others, including through the provision of procedural and age-
appropriate accommodations, in order to facilitate their effective role as direct and
indirect participants, including as witnesses, in all legal proceedings, including at
investigative and other preliminary stages7.
7
Convention on the Rights of the Persons with Disabilities (CRPD)
CONCLUSION
It’s presumed in the legal profession that the first step to even think about getting
justice should be when you have a heavy pocket. But with time things are
changing and a whole different side of judiciary can be seen. What we have been
taught is that the democracy is responsible to protect every right of all the
citizens. Laws are there but what we really need to work is on the implementation
part. And it should be acknowledged by everyone that Development will only
meet its meaning when justice will be secured with the help of democracy as well
as the citizens. The scope of judiciary needs to be widened. In the end, we must
remember that no amount of rules or their enforcement will defeat those who
struggle with justice on their side. - Nelson Mandela .