India: Access To Justice In India

Last Updated: 27 January 2015
Article by Amit Pratap Shaunak

Most Read Contributor in India, September 2016


The phrase "access to justice" cannot be easily defined. It is a political, legal, and rhetorical symbol of undeniable power and attractiveness for the subjects of statecraft. Access to justice has an intrinsic nexus with the term "justice", in the sense that it is its minimum prerequisite. The notion of justice evokes the cognition of the rule of law, of the resolution of conflicts, of institutions that make law and of those who enforce it; it expresses fairness and the implicit recognition of the principle of equality1.

Access to justice relates to the ease of entry to a legal institution as also to the nature of the de jure fact that carries its promise2. The concept of access to justice has undergone an important transformation; earlier a right of access to judicial protection meant essentially the aggrieved individuals formal right to merely litigate or defend a claim. The reason behind this was that access to justice was a natural right and natural rights did not require affirmative state action. However with the emergence of the concept of welfare state the right of access to justice has gained special attention and it has become right of effective access to justice. In the modern, egalitarian legal system the effective access to justice is regarded as the most basic human right which not only proclaims but guarantees the legal rights of all3.

In today's world," Access to justice" means having recourse to an affordable, quick, satisfactory settlement of disputes from a credible forum4. The words "access to justice" serve to focus on two basic purposes of legal system- the system by which people may vindicate their rights and/or resolve their disputes under the general auspices of the state. Thus it requires that the system, firstly, must be equally accessible to all, and second, it must lead to results that are individually and socially just.

Access to justice can be broadly categorized into formal and informal access to justice. The formal access to justice is basically adjudication of disputes by the courts which follow the rules of civil and criminal procedure. This mode of justice delivery system though the primary model, has numerous shortcomings such as cost hurdles, inordinate delays and other technical hurdles like laches and execution of courts order. On the other hand informal access to justice includes alternative modes of dispute resolution such as arbitration, conciliation, mediation, lok adalats and nyaya panchayats. Contrary to what the nomenclature suggests, alternative modes are more of a supplementary phenomenon and were devised with that very intent. However, one has to remember that these methods of dispute resolution are required to always adhere to certain basic postulates of dispute resolution - parity of power between the contesting parties being one such postulate. If they in their very conceptions offer scope for coercion or influence, they cannot be considered to be imparting justice. It has to be remembered that justice is the beacon of any dispute resolution method and not just mere settlement of dispute. If mere settlement becomes the beacon, then there comes the element of power imbalance and as a result, the society becomes lopsided leading to tussle and eventual conflict between power holders and power addressees.


The present mode of access to justice through courts, followed in India is based on adversarial legalism. The adversarial system of law is generally followed in common law countries, and is characterized by the state's neutrality and in which the parties are responsible for initiating and conducting litigation except in criminal matters wherein the state initiates the proceedings5. This mode of access to justice is an inheritance from the British and was implemented by the British government to exploit the Indian masses.

The whole set up was for the benefit of the power holders and not for the power addressees. In this method there was no parity of power between the parties to the dispute and it was plagued by high cost, delay, uncertainty and exploitation of parties by advocates. This mode of access to justice displaced the community justice system as well as the last vestiges of the inquisitorial model, which was prevalent in ancient India. This inherited mode of access to justice is unable to deliver as it is a relic of colonial rule, was born out of the need of the colonial masters to perpetuate their dominance and was thus primarily designed for the same, with 'justice' being more or less an afterthought. It was fashioned to provide a semblance of justice so as to avoid dissent, which is but the natural fallout of denial of the same. Real and effective justice, for obvious reasons, was not a priority of the colonial masters. The system prevalent then, and unfortunately for us, still in continuation is inherently partial to the well heeled. It discriminates on economic grounds, creating disparities right at the outset, de facto denying to some even access to the institutions of justice delivery. And the de facto denial is a consequence of us trying to work de jure equality6 through a mechanism at odds with it, on account it being inherently iniquitous.

After the independence when the Constitution of India came into being the approach towards access to justice was redesigned and modified, and an attempt was made to bring parity of power in modes of dispute resolution. The preamble of the Indian Constitution resolves to secure for all its citizens, justice-social, economic and political. Further, Article 14 of the Indian Constitution reads as follows: "Equality before Law – The State shall not deny to any person equality before the law and the equal protection of the laws within the territory of India." The words "equal protection of laws" indicates two things: Firstly that every person is entitled to protection of all the laws of the land, and secondly, every person within Indian territory is equally entitled to that protection.

Article 14 casts a duty on the State to deliver the substantial promise of the laws, in other words the state has been imposed with a duty of delivering justice to all the people within the territory of India. In addition to this, Article 256 of the Indian Constitution provides for two important things firstly, it obliges the State governments to implement the laws, which are the laws passed by the State and Union Legislatures. Secondly, on failure to do so, the Union government is under an obligation to direct the State government to implement the laws7. Thus under the Constitution, a strict duty is cast on the State to ensure that there is compliance with every law. Therefore from the abovementioned, it is logical to conclude that even the violation of a private right casts a duty upon the state to initiate proceeding against the offender.

Thus, from a reading of the abovementioned provisions one can infer that the Constitution discarded the adversarial mode of adjudication and impliedly adopted the inquisitorial mode. But that idea, unfortunately has not reified as yet, and the old model though in dissonance with fundamental provisions of our Constitution is still operative.

In an inquisitorial system, the court or a part of the court is actively involved in determining the facts of the case, as opposed to an adversarial system where the role of the court is solely that of an impartial referee between parties. However, the constitutional mandate in this regard has been consistenly overlooked and we end up, still upholding the adversarial mode of adjudication, inspite of the fact that it is inherently prejudicial to the parity principle and thus contrary to Article 14 ,and thereby unconstitutional.


What does informal access to justice mean? There is as such no definition of informal access to justice, but as the name itself suggest, it means the "access to justice" which does not follow any prescribed procedure for adjudication of disputes. Unlike a court which is a formal mode of access to justice, in informal modes of access there is not strict adherence to procedural laws and the laws of evidence. Further, parties are free to represent themselves, without taking the help of an advocate and there are no formalities in respect of filing the suit etc. and other such technicalities as followed in the regular courts.

But the fundamental question that arises is that when we have the formal system of adjudication in the form of courts, why then are the informal modes required? There are many reasons for adopting the informal modes of access to justice: First and foremost, it helps to dispose of a large number of trivial cases summarily and thus relieves the burden of regular courts. This is facilitated by the relaxation in rules of procedure and evidence, and as a corollary results in a relatively inexpensive settlement of disputes. Thirdly, cases are decided in a manner more befitting a compromise than adjudication and therefore the antagonism that follows in the wake of litigation is greatly reduced. Fourthly, it is more practical that matters relating to personal laws like divorce, maintenance etc. and other non compoundable criminal matters are settled through these means, for it works out in the best interests of both citizens and the state. It must, however, always be remembered that informal modes are to be supplemental to the convential modes of access and not to ever substitute it. They, as the nomenclature suggests, make access more accessible by ridding it of excessive red tape, but this is not to be construed as affording to the administering instrumentality the space to subvert or overlook certain essential underlying principles, chief among them being the maintainence of the principle of parity. For that would defeat the very purpose of their being, on account of it seriously vitiating the quality of justice to be delivered. To impress upon this, it would be appropriate to mention that any justice delivery mechanisms, formal or informal ought to be able to withstand the test of the power spectrum as enunciated by Prof. Julius Stone8. The informal modes of access to justice include Nyaya Panchayats, lok adalats, Negotiation, Arbitration, Conciliation, Mediation and the Ombudsman.


The Informal modes of access to justice are not to supplant the formal modes of access to justice rather to supplement them. But as we have already discussed that the Informal modes of access to justice which includes Nyaya Panchayats, lok adalats, Negotiation, Mediation, Conciliation, Arbitration and Institution of Ombudsman working in India, are not adhering to the principle of parity of power and are also not in consonance with the constitutional mandate. The institution of Nyaya Panchayat is providing easy access to justice to the people living in villages but it's not only about an access to justice rather one should be able to get justice. The problem is that the powerful factions of the villages are substantially using the nyaya panchayats for their favour at the expense of justice. The lok adalats are also working well and helping courts in relieving their burden but the approach of lok adalats towards the dispute resolution is conciliatory which involves waiver of right and it is against the article 14 of the constitution. The other mode of informal dispute resolution like negotiation, mediation and conciliation are not effective because a mediator or a conciliator has no power to order a party to appear and defend a claim. Nor can a mediator or conciliator compel the losing side to comply with a decision. Moreover these mechanism of dispute resolution they involves waiver of right which is against the article 14 of the Constitution. As far as Arbitration is concerned the award of arbitrator is binding, thus satisfying the coercion count but as the Arbitration and conciliation act provides for the waiver of the right it is against the principle enshrined in article 14 of the constitution. Another lacuna is that it is based on the adversarial model of litigation which results in delay and high costs. The institution of ombudsman popularly known as office of "lokayukta" is not provided with the requisite machinery and powers by the respective state legislation and is thus not working effectively.

Although these modes of informal access to justice were premised on good intentions, their manifest effects are to the contrary. This is confirmed by the facts as have been aforementioned in the course of this paper. The primary and fundamental flaw being that despite making access to the instrumentalities involved easier, the very quality of justice that they are employed to deliver is warped by their processes. As has been reiterated time and again through this paper, these modes are inclined more to afford convenience to the state than to deliver wholesome justice, and that holds true for the formal modes as well. The quality of justice (the use of the word justice being malapropos here) in the true sense is made ineffectual to a great extent by it being moored in inequitable postulates.

The apocryphal notion that the adversarial system sub serves the object of justice better is exposed by its inherent inconsistency with Article 14, which is as compendious an articulation of the principle of equity as possible. Article 14 impliedly advocates the implementation of an inquisitorial system premised on the parity of power. We can also draw inspirations from the principles of Rajadharma which is based on the inquisitorial pattern. What we need is model which can suit our society and principle of Rajadharma answers the present problems of the Indian society. The principles of Rajadharma are embedded in the Constitution also. Under the Constitution it is the duty of the state to provide equal protection of laws and to enforce compliance with every law. Thus a state has to play a pro-active role in providing justice; what is required is a reading and enforcement of the Constitution in the true spirit.


1. Rawl John, " A Theory of Justice" (Harvard University press, Edition 1997) p11

2. This view is contrary to the general notion wherein the nature of justice as contained in the law (procedural or otherwise) is considered beyond the scope of this head.

3. Cappilletti, M., Garth, Bryant,Access to Justice, Vol I, The Florence Access to Justice Project, Sijthoff and Noordoff, Milan, 1978, p. 9.

4. P P Rao, Access to Justice and delay in disposal of cases, Indian Bar Review, vol-30, 2003, pp 208 5. 'cited in'

6. See Article 14 of the Constitution of India.

7. See Article 256 of Constitution of India

8. Supra 10 p 598

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.