Dr. B. R Ambedkar once said, “If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity, then I could not refer to any other article except Article 32.1 It is the heart and soul of the Constitution”. This Article directly allows an individual to approach the Supreme Court if his or her fundamental rights are violated or they need to be enforced. In addition, the right guaranteed by this Article “shall not be suspended except as otherwise provided for by this Constitution”. Indian Constitution ensures us with such important provisions, but do the backward and oppressed communities in the country benefit from those provisions?
In the Indian social structure Schedule Castes, Schedule Tribes, Nomadic Tribes and other backward communities have been victims of oppression for a long time. The fulfilment of their basic rights is yet to be met, they face a daily struggle for human rights. Despite having such endless issues, why are they not being heard before higher courts? Why can’t they get easy access to courts to get their rights enforced?
In Anita Kushwaha Vs. Pushpa Sudan,2 Hon’ble Supreme Court stated, The concept of “access to justice” is an invaluable human right, which is also recognised in most constitutional democracies as a fundamental right.
Blacks’ Law Dictionary defines ‘access to justice’ as the ‘ability within a society to use courts and other legal institutions effectively to protect one’s rights and pursue claims’. However, the major section of the society still lacks that “ability” to get easy access to Courts. What stops the government from developing the ability of individuals in these 70 years of the Constitution?
The major complications in getting access to judicial institutions are,
1. Lack of Awareness: The backward and oppressed communities not only lack awareness about constitutional remedies or safeguards but also awareness about their own rights as well. Majority of people do not know what their rights are. Around 30-35% of Indian Population has no formal education. So being unaware about these things, they do not report such violations of rights. Secondly, it is not the duty of the community to get educated about the remedies and safeguards by themselves; it is the duty of the state. Which they fail to do and the community is lacking the awareness about the rights, remedies and safeguards.
2. Geographical Barriers, Poverty & Social Backwardness: Even though the Constitution allows the individual to approach the Supreme Court or High Court directly but the geographical barriers, poverty and social backwardness remain a great obstacle. The Supreme Court and High Courts are situated in urban areas. It is very difficult for the people residing in Rural and Tribal areas to reach there. The tribal who has never seen the district headquarters in which he resides, how will he dare to reach such big cities without any support. Approaching Supreme Court or High Court includes the expenses for travelling, lodging, lawyer fees: all of which a common person cannot afford because of her financial instability. When he or she is struggling for one time meal then even if and they wish to approach the higher court when their rights are violated, they cannot. If police detain any tribal residing in forest for more than 24 hours, still he cannot approach higher courts due to the above mentioned barriers. However, despite having such barriers the upper caste people don’t have to face such issues because of their caste networks and their representation in each and every sector, but the oppressed and the backward communities have to struggle at every stage to reach there.
Lack of road connectivity is a major issue in rural and tribal areas of our country due to which their other allied rights get infringed. If it was so easy to get access to court, then the violation of the right to road in rural and tribal areas should have come many years before the court. Majority of the cases regarding right to road before Supreme Court and High Courts are associated with roads in cities or footpaths, but there are very few cases about violation of right to road in rural or tribal areas even though this is a major issue of that area. Lack of social consciousness among the judges is also a big problem, because in many issues of roads, potholes, zebra crossings in cities the judges have been seen taking Suo moto cognizance,3 but they never bother to intervene in rural or tribal areas.
When people’s basic right to access to roads is not fulfilled and they struggle every day to reach the hospitals, schools, markets then how can they get access to courts so easily!
3. Lack of free legal aid: Article 39A of Indian Constitution provides free legal aid to the poor and weaker sections of the society, to promote justice. It is a fundamental right guaranteed to them. Legal service authorities have been established from national level to taluka level to provide free legal aid, but unfortunately, they are not working effectively. This became another example of a social justice law that is well intentioned on paper but has problems with its implementation on the ground. Research by Prof. Jeet Singh Mann of National Law University, Delhi (NLUD) found that 16% of respondents claimed legal aid counsel demanded money.4
4. Issue of legal language: Language of Laws, Court, and Judgements have such complexity that the person not belonging to the legal fraternity cannot understand it that easily. This language barrier restricts the understanding of the common person regarding his rights, safeguards and overall the process which prevents them from accessing the justice system. The High Courts are also not allowed to use Hindi for judgements, orders etc. Article 348 (1)5 lays down that until Parliament otherwise provides, proceedings in the Supreme Court and in a High Court are to be in the English language. Also according to Article 348(2)6 the Governor of a State, with the previous consent of the President, may authorize the use of Hindi, or any other official language of the State, in proceedings in the High Court. That means use of English in the judicial process can change, which will enable the common people to understand the judgments, orders and court proceedings in their regional languages.
Need of Implementation of Article 32 (3)
Article 32 is not just limited to provisions which allow an individual to approach the Supreme Court. It goes beyond that. Clause 3 of this Article is provided with a very important provision that, parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court. This provision can play an important role in widening the scope of access to justice if such law gets enacted and implemented properly.
Firstly, empowering District Courts or JMFC Courts, with limited manners, to exercise within their local jurisdiction the power to issue directions or orders or writs for the enforcement of the fundamental rights can be a very important step. It would help to provide speedy justice and to get easy access to ventilate the grievances against the administration and seek justice after fundamental rights are violated. The oppressed and backward communities who lack access to higher courts will get easy and affordable accessibility without any barriers to seek justice. After enforcement of this act many, unheard issues of violation of fundamental rights will come before the courts.
Secondly, the Law Commission in the 125th and 129th Report recommended the Supreme Court to set up its benches in different states.8 Many excellent lawyers from other High Courts are not appearing before the Supreme Court because of monetary burden on their clients, many of whom are impoverished and it is not possible for everyone to reach there considering other discussed aspects too. The solution is already given in the Constitution, Article 130 states that, “The Supreme Court shall sit in Delhi or in such other places or places, as the Chief Justice of India may, with the approval of the President from time to time.” It means that the Supreme Court can even sit in such other places too. The implementation of this provision will help to eliminate many barriers in getting justice.
However, it is very unfortunate that in these 70 years of Constitution no government felt the importance of enacting such a law or pass such regulations. When we try to trace the reason for non-implementation of existing constitutional provisions, we find that the enactment of such law will enable the oppressed class to get easy access to sue the political or overall upper caste ruling class who are depriving them from the basic human rights. In the caste based social system of India, the upper caste dominated ruling class are the real oppressors, they are the one who are rejecting our representation, depriving us of our rights and continuously trying to keep the social structure alive where they want us to remain at a lower level so that they could continue to exploit us. This fear of getting their oppressor’s face exposed prevents them from making such laws.
There is a need to start a strong movement for proper implementation of those provisions, so that we can compel the ruling class to put this issue in their manifesto. Because unless the issue becomes political, it does not get much importance. As of now, we have many strong movements to fight for social causes, but now it is time to start the movement that questions the judicial system directly.
Bodhi Ramteke is a final year law student at ILS Law College, Pune.