History of the Common Law right of ‘access to justice’

Access to justice

In England, during the reign of Henry II, in the Twelfth Century, the concepts of ‘access to justice’ and ‘rule of law’ took roots when the King agreed for establishing a system of writs that would enable litigants of all classes to avail themselves of the King’s justice. But soon, the abuses of ‘King’s Justice’ by King John, prompted the rebellion in 1215 that led to the Magna Carta which became the initial source of British constitutionalism. What it represented then and now is a social commitment to the Rule of Law and a promise that even a King is not above the law.

As Blackstone stated later, “It is the function of the common law to protect the weak from the insults of the stronger” (3 Blackstone Commentaries, 3). The Magna Carta asserted not only that the King was bound by law but the barons too and this gave protection to all ‘freemen’. The three crucial clauses of the Magna Carta which are the foundation for the basic ‘right of access to Courts’ are in the following words:

“No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in anyway ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. To no man will we sell, to no one will we deny or delay right to justice.

Moreover, all those aforesaid customs and liberties, the observance of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed by all our kingdom, as well clergy as laymen, as far as pertains to them towards their men.

Wherefore, it is our will, and we firmly enjoin, that the English Church be free, and the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all aspects and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intention – Given under our hand – the above named and many others being witnesses – in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.”

In more than 500 years following the Magna Carta at Runnymede, Courts resolved disputes, created precedents and laid down vast principles which came to be known as the common law. The Commentaries of Sir Edward Coke and of William Blackstone crystallized the fundamental principles of common law that enshrine the basic rights of man. The principles relating to these basic human rights together with experiences in France, US and other countries entered into the Bills of Rights and the Constitutions of various countries. Every right when it is breached must be provided with a right to a remedy. Ubi Jus ibi remedium says the Roman maxim.

The latest theory is that the right to ‘access to justice’ became part of the common law and was later continued and recognized as part of the ‘Constitutional Law’. The “common law” says Justice Laws in R v. Lord Chancellor, ex pate Witham, 1997 (2) All ER 779, “does not generally speak in the language of constitutional rights, for the good reason that in the absence of any sovereign text, a written Constitution which is logically and legally prior to the power of legislature, executive and judiciary alike, there is on the face of it no hierarchy of rights such that anyone of them is more entrenched by the law than any other. And if the concept of a constitutional right is to have any meaning, it must surely sound in the protection which the law affords to it. Where a written Constitution guarantees a right, there is no conceptual difficulty. The State authorities must give way to it, save the extent that the Constitution allows them to deny it. There may of course be other difficulties, such as whether on the Constitution’s true interpretation the right claimed exists at all. Even a superficial acquaintance with the jurisprudence of the Supreme Court of the United States shows that such problems may be acute. But they are not in the same category as the question arises: do we have constitutional rights at all?”

Laws, LJ. further states “In the unwritten legal orders of the British State, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can, in my judgment, inhere only in this proposition, that the right in question cannot be abrogated by the State save by specific provision in an Act of Parliament or by regulations whose vires in main legislation specifically confers the power to abrogate. General words will not suffice. Any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it.”

Interestingly, the above decision in Witham was given in judicial review proceedings challenging the validity of the Supreme Court Fees (Amendment) Order, 1996, Article 6 of which amended the Supreme Court Fees Order, 1980 and repealed the provision which relieved litigants in person who were in receipt of income support from the obligation to pay Court fees and permitted the Lord Chancellor to reduce or remit the fee in any particular case on grounds of undue financial hardship in exceptional circumstances. Striking down the amendment which had been issued by the Lord Chancellor, acting under the powers conferred on him by s.130 of the Supreme Court Act, 1981, the High Court (Queen’s Bench Division) held that the effect of the amendment was to “bar absolutely many persons from seeking justice from the courts”. It was emphatically asserted (at page 788): “Access to the courts is a constitutional right; it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect by express provision – permits the Executive to turn people away from the court door.”

Earlier, Lord Diplock, while dealing with the High Courts’ power to control the conduct of arbitrators, incidentally referred to this aspect and said in Bremen Vulkan Schiffban and Maschinenfabrik v. South India Shipping Corp., (1981 AC 909 – 1981 (1) All ER 289) as follows:

“The High Courts’ power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilized system of government requires that the State should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant.”

Likewise, Steyn LJ in R v. Secretary of State for Home Dept, ex p Leech: 1993

(4) All ER 539 (CA), was dealing with a prisoner who complained that correspondence with his solicitor concerning litigation in which he was involved or intended to launch, was being considered by the prison authorities under the Prisons Rules, 1964. The prisoner contended that sec. 47(1) of the Prisons Act, 1952 which authorised the framing of Rules, could not authorize the Secretary of State to make a rule which created an impediment to the free flow of communication between him and his solicitor about contemplated legal proceedings. The learned judge held as follows:

“It is a principle of our law that every citizen has a right of unimpeded access to a court. In Raymond v. Honey 1983 AC 1 (1982 (1) All ER 756) Lord Wilberforce described it as a ‘basic right’. Even in our unwritten Constitution, it ranks as a constitutional right. In Raymond v. Honey, Lord Wilberforce said that there was nothing in the Prisons Act, 1952 that confers power to ‘interfere’ with this right or to ‘hinder’ its exercise. Lord Wilberforce said that rules which did not comply with this principle would be ultra vires. Lord ElwynJones and Lord Russell of Killowan agreed… It is true that Lord Wilberforce held that the rules, properly construed, were not ultra vires. But that does not affect the importance of the observations. Lord Bridge held that rules in question in that case were ultra vires… He went further than Lord Wilberforce and said that a citizen’s right to unimpeded access can only be taken away by express enactment… It seems (to) us that Lord Wilberforce’s observation ranks as the ratio decidendi of the case, and we accept that such rights can as a matter of legal principle be taken away by necessary implication.”

In yet another case in Re Vexatious Actions Act 1896, Re Boaler (1915) (1) KB 21, the right of a person to lay information before a magistrate was held, could not be prohibited, as the same could not be brought within vexatious ‘legal proceedings’ which could be prevented under the 1896 statute. It was held by Scrutton J as follows:

“One of the valuable rights of every subject of the King is to appeal to the King in his courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any statute should be jealously watched by the court, and should not be extended beyond its least onerous meaning unless clear words are used to justify extension….. I approach the consideration of a statute which is said to have this meaning with the feeling that unless its language clearly convinces me that this was the intention of the Legislature I shall be slow to give effect to what is most serious interference with the liberties of the subject”

De Smith’s Judicial Review of Administrative Action (5th Ed, 1995) was also quoted by Sir John Laws in Witham (para 5.017) as follows:

“It is a common law presumption of legislative intent that access of Queens’s Court in respect of justiciable issues is not to be denied save by clear words in a statute”

Laws LJ., again reiterated in International Transport Roth Gmbitt v. Home Secretary, 2002 (3) WLR 344, in his separate judgment, that, after the coming into force of the Human Rights Act, 1998 (w.e.f. 2.10.2000), the British system which was once based on parliamentary supremacy has now moved from that principle to the system of constitutional supremacy. He referred to the judgment of Iacobucci J in Vriend v. Alberta, 1998 (1) SCR 493 where the judge said that after the Canadian Charter of Rights and Freedoms, Canada has moved from parliamentary supremacy to constitutional supremacy. He said:
“When the Charter was introduced, Canada went, in the words of former Chief Justice Brian Dickson, from a system of parliamentary supremacy to constitutional supremacy…. Simply put, each Canadian was given individual rights and freedoms which no government or legislature could take away”

Laws LJ., stated that in the present state of evolution, the British system may be said to stand at an intermediate stage between parliamentary supremacy and constitutional supremacy……”

Thus, from the above decisions, the concept of access to justice, can be understood as constituting an integral part of the constitutional and common law jurisdictions, and is considered sacrosanct and attempts to lightly interfere with the right are generally viewed strictly.

Access to Justice in India

In India, there can be no doubt that the citizens had always access to the King, right from the time of Ramayana according to our history. When the Indian Courts later absorbed the common law of England, the right to access to courts became part of our constitutional law, even long before the coming into force of our Constitution. That continued even after the Constitution because of Article 372. We wish to refer to two interesting cases that arose in the pre-independence era which would indicate that concept of a non-derogable right of access to justice was recognised and enforced by the courts in this country.

Among the early decisions was one rendered by the Bombay High Court in Re: Llewelyn Evans AIR 1926 Bom 551. In that case, Evans was arrested in Aden and brought to Bombay on the charge of criminal breach of trust. At the stage of granting remand of the prisoner to police custody, Evans’ legal adviser was denied access to meet the prisoner. The Magistrate who ordered the remand held that he had no jurisdiction to grant access despite the fact that s.40 of the Prisons Act, 1894 provided that an unconvicted prisoner should, subject to proper restrictions, be allowed to see his legal adviser in jail. The question that arose was whether this right extended to the stage where the prisoner was in police custody. Justice Fawcett, who presided over the Bench of the Bombay High Court which heard the case referred to the report of the Rawlinson Committee in England and noted that “the days have long since gone by, when the state deliberately put obstacles in the way of an accused defending himself, as for instance, in the days when he was not allowed even to have counsel to defend him on a charge of felony.” Referring to s.340 of the Code of Criminal Procedure, 1898 the Judge held that “the right under that provision implied that the prisoner should have a reasonable opportunity “if in custody, of getting into communication with his legal adviser for the purposes of preparing his defence”. The other judge on the Bench, Justice Madgavkar added that “if the end of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case and to lay its evidence fully, freely, and fairly, before the Court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice – advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very state which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance”.

Another instance of the courage and craftsmanship of our Judges, particularly during difficult times of our political and legal history, is provided in the decision in P.K. Tare v. Emperor, AIR 1943 Nagpur 26. The petitioners, who had participated in the Quit India Movement of 1942, challenged their detention under the Defence of India Act, 1939 as being vitiated on account of refusal of permission by the authorities to allow them to meet their counsel to seek legal advice or approach the court in person. The Government of the day contended that the Defence of India Act 1939 took away the right to move a habeas corpus petition under S.491 of the Cr.PC 1898. The court rejected this relying on the observation of Lord Hailsham in Eshugbayi v. Officer Administering the Govt. of Nigeria that “such fundamental rights, safeguarded under the Constitution with elaborate and anxious care and upheld time and again by the highest tribunals of the realm in language of utmost vigour cannot be swept away by implication or removed by some sweeping generality. No one doubts the right and the power of the proper authority to remove, but the removal must be express and unmistakable; and this applies whatever government be in power, and whether the country is at peace or at war.” Justice Vivian Bose, giving the leading opinion of the court, explained that the right to move the High Court remained intact notwithstanding the Defence of India Act, 1939. Further, although the courts allow a great deal of latitude to the executive and presumptions in favour of the liberty of the subject are weakened, “those rights do not disappear altogether.” The court categorically ruled that the “attempt to keep the applicants away from this Court under the guise of these rules, is an abuse of power and warrants intervention.”

Justice Vivian Bose, in the course of his judgment, emphasised the importance of the right of any person to apply to the court and demand that he be dealt with according to law. He said: “The right is prized in India no less highly than in England, or indeed any other part of the Empire, perhaps even more highly here than elsewhere; and it is jealously guarded by the courts.”

The Constitution and after

The debates in the Constituent Assembly preceding the making of the Constitution of India witnessed interesting exchanges amongst the distinguished gathering. Article 22 (1) was Article 15-A in the Draft Constitution and provided that “no person who is arrested shall 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 a legal practitioner of his choice”. Dr. Ambedkar was conscious of the criticism that had resulted from the omission of “due process” from Article 21 (Article 15 in the Draft Constitution). Therefore, when the debate on Article 15-A was to commence he pointed out that it was being introduced in order to make “compensation for what was done then in passing Article 15. In other words, we are providing for the substance of the law of ‘due process’ by the introduction of Article 15-A”. He further pointed out that “Article 15-A merely lifts from the provisions of the Criminal Procedure Code two of the most fundamental principles which every civilized country follows as principles of international justice”, viz., the right of a person arrested to be informed of the grounds of arrest and the right to be defended by a legal practitioner of his choice. It may be noted that clause (a) of Article 22 of the Constitution creates only two exceptions and they are (a) enemy alien and (b) persons detained under preventive detention laws. They have no right to consult a lawyer nor be defended by a lawyer nor produced within 24 hours before a Magistrate.

The Constitution recognised importance of access to justice to courts, particularly the High Courts and the Supreme Court. The right under Article 32 to petition the Supreme Court for enforcement and protection of a fundamental right is itself a fundamental right. In re under Article 143, Constitution of India, (Keshav Singh case) (AIR 1965 SC 745), the Supreme Court said “The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the court in that behalf.” Kesavananda recognised judicial review as part of the basic structure of the Constitution, a position that has been reaffirmed by a bench of seven judges in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

Right to ‘access to Courts’ includes right to legal aid and engaging counsel

Article 39-A was introduced in the Constitution (42nd Amendment) Act, 1976 and it provides that “the State shall secure that the operation of the 24legal system promotes justice, on a basis of equal opportunity, and shall, in particular, 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 disabilities”.

We need not dilate here on the major strides made in the development of the jurisprudence surrounding the right to life under Article 21, particularly after the landmark decision in Maneka Gandhi. The linkage between Article 21 and the right to free legal aid was forged in the decision of Hussainara Khatoon v. State of Bihar, (1980) 1 SCC 81 where the court was appalled at the plight of thousands of undertrials languishing in the jails in Bihar for years on end without ever being represented by a lawyer. The court declared that “there can be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.” The court pointed out that Article 39-A emphasised that free legal service was an inalienable element of ‘reasonable, fair and just’ procedure and that the right to free legal services was implicit in the guarantee of Article 21. In his inimitable style Justice Bhagwati declared: “legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possible eventuality”. He reiterated this proposition in Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 and said “It may therefore now be taken as settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21.” This part of the narration would be incomplete without referring to the other astute architect of human rights jurisprudence, Justice Krishna Iyer. In M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544, he declared: “If a prisoner sentenced to imprisonment is virtually unable to exercise his constitutional and statutory right of appeal inclusive of special leave to appeal for want of legal assistance, there is implicit in the Court under Article 142 read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual ‘for doing complete justice”.

Recommendation of the Commission for Review of the Constitution on right of access to justice

Recently the Commission for Review of the Constitution recommended that ‘access to justice’ must be incorporated as an express fundamental right as in the South African Constitution of 1996. In the South Africa Constitution, Article 34 reads as follows:

“Art. 34: Access to Courts and Tribunals and speedy justice (1) Every one has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a Court or tribunal or forum or where appropriate, another independent and impartial Court, tribunal or forum.

(2) The right to access to Courts shall be deemed to include right to reasonably speedy and effective justice in all matters before the Courts, tribunals or other forum and the State shall take all reasonable steps to achieve that object.”

Accordingly, the National Commission for Review the Working of Constitution has recommended insertion of Article 30A on the following terms:

“30A: Access to Courts and Tribunals and speedy justice (1) Everyone has a right to have any dispute that can be resolved by the application of law decided in a fair public hearing before an independent court or, where appropriate, another independent and impartial tribunal or forum.

(2) The right to access to Courts shall be deemed to include the right to reasonably speedy and effective justice in all matters before the courts, tribunals or other fora and the State shall take all reasonable steps to achieve the said object.”

However, the right to legal aid in India is now firmly entrenched in the Legal Services Authorities Act, 1987. S.12 of that Act provides that legal aid will be available both on the means test as well as the merits test. In fact, for a wide range of litigants with special needs [for instance, persons in custody, children, women, complainants under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, workmen], legal aid is automatically available for filing or defending a case irrespective of the economic status of that person. We have, under the Act, an extensive network of legal aid committees at the taluk, district and State levels. In addition, the Supreme Court and every High Court has its own legal services committee. The task before these committees is to provide effective and quality legal aid, that will not be restricted to legal representation in courts but also counselling and advice, and this is an important and daunting challenge.

SOURCE: Law Commission of India Report No. 189-Revision of Court Fees Structure-February 25, 2004

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