Ensuring access to justice Editorial 2nd Apr’19 TheHindu
Headline : Ensuring access to justice Editorial 2nd Apr’19 TheHindu
Justice system in India is not accessible to many:
- The justice system in any democracy is set up, under the Constitution to serve the public, and judges are supposed to act without “fear or favour, affection or ill-will”.
- However, judges through lack of prescience, and many lawyers through their dishonesty in many forms, have stopped access to justice to the people.
SC has not favoured having benches at other places as justice might get diluted:
- The Central government has a few times requested the Supreme Court to sit in other places in the country under Article 130 of the Constitution.
- However, so far, the Chief Justice of India and the advising judges have not favoured it, as they felt that the authority of the Supreme Court would get diluted.
But High Courts have benches without justice getting diluted:
- The reasoning that justice might get diluted with SC benches at various places is fallacious.
- Many High Courts in this country have different Benches for meting out justice without ‘justice’ being ‘diluted’.
- For example, the Bombay High Court has four Benches — in Mumbai, Aurangabad, Nagpur and Panaji (Goa) — and the quality of its decisions or status have certainly not been diluted thereby.
- The number of Benches depends on the size of the State, the idea being to facilitate easier access to justice.
Problems of SC sitting only in Delhi:
- Many good lawyers not getting to argue in SC:
- The Supreme Court sitting only in Delhi has resulted in excellent lawyers from other High Courts not appearing before the Supreme Court.
- One of the major reasons for this is because it puts too large a monetary burden on their clients, many of whom are impoverished.
- Many ordinary lawyers are practising in SC while just a few good lawyers are dominating:
- Some of the good lawyers who have settled down in Delhi they have established a monopoly, and charge huge fees from clients.
- Also, all lawyers, whatever their calibre or competence, who happen to be in Delhi now appear in the Supreme Court.
- SC in Delhi has been reduced to hearing all sorts of frivolous cases:
- The Supreme Court in Delhi has been flooded with work and been reduced to a District Court instead of a Court of Final Appeal and Constitutional Court as envisaged under the Constitution.
Major problem of unethical lawyers leading to denial of justice to people
- The fault in actually denying access to justice to citizens is majorly the fault of unethical lawyers.
- Lawyers are mostly dishonest, and often act as dishonest brokers and middle-men between judges and the litigating public.
- According to a study carried out by a research organisation, Vidhi, in the Delhi High Court, more than 70% of the delays in the disposal of cases are attributable to lawyers, a major reason being sometimes unjust pleas for adjournments.
Examples of unethical practices:
- Victims cheated out of victim compensation:
- Some of the lawyers specialising in victim compensation cases do not charge any fees for their services and render services free of cost.
- They generally obtain a blank cheque from the victim which is filled in after credit of the compensation to the bank account of the victim.
- Some of the lawyers specialising in victim compensation cases thus take huge money as a percentage of compensation amount awarded towards victim compensation.
- Such a practice is frustrating the whole purpose of victim compensation.
- Accident claim cases:
- Some advocates dealing with Motor Accident Claim Cases under Section 166 (application for compensation) of the Motor Vehicles Act, 1988 agree to conduct the cases without a fee, but in the event of compensation being granted by the court, the advocates get a certain percentage.
- This is an illegal agreement.
Disciplinary jurisdiction over lawyers
Was originally with courts:
- The disciplinary jurisdiction over lawyers was originally with the courts.
- As far as the older High Courts are concerned, this is clear from the respective Letters Patents under which the courts were set up.
Later power given to lawyers:
- This continued till the power was taken away by the Advocates Act, 1961.
But Bar Council has not been effective in disciplining lawyers:
- The disciplinary powers over lawyers available to Bar Councils both in Delhi and in States are more often than not ineffective.
- Some are politically motivated and some States do not have disciplinary committees at all.
The way forward
- There is a need to kick out the corrupt lawyers from the system at all levels so that justice may be truly rendered to the public.
- Certain measures can be considered in this regard:
- SC benches in states: The Supreme Court should reconsider setting up Benches in different States in keeping with the recommendations of the Law Commissions (125th Report and 229th Report).
- Disciplinary jurisdiction over lawyers to the courts: The Bar Council of India should exercise its powers under the Advocates Act, 1961 more effectively. If not, the disciplinary jurisdiction must be returned to the judiciary as was the position prior to the Advocates Act, 1961 by repealing the 1961 Act.
- Greater mediation: Lawyers should be made irrelevant by referring more cases to trained mediators, as the Supreme Court has done in the Ayodhya dispute.
GS Paper II: Polity & Governance