The expression “access to justice” carries a lot of discussion around it and rightly so, as it is a fundamental aspect of a person’s life and his dealings in society. It carries with it the idea that every person must have the means to protect all of his/her rights and seek justice. The concept of access to justice holds the position that each person must have appropriate opportunities and means to secure basic rights for themselves under the law and have remedies available if these rights are infringed. It also carries an assumption that that unjust consequences can be minimized and removed from society, enabling every person to have a pathway to justice.
Over the years, access to justice has developed and evolved a lot. From what started out with the availability of a court system to enable access to everyone to where it stands now with the nuanced court system and the alternative dispute resolution (ADR) mechanism. In between came the principles of justice, legal aid provisions, development of fast track courts, tribunals, and also alternative means. These developments can be traced in the form of waves of reforms. The concept of access to justice is ever-expanding and multifaceted.
As described by Cappelletti and Garth’s waves of change, the developments through the years can be traced in three waves. The “first wave” is the provisions of legal aid marking the access to lawyers and the court system, to the underprivileged masses. The “second wave” refers to the representation of ‘diffuse’ interests in different areas of law and otherwise. The “third wave” refers to building options to increase access to justice in the form of the development of alternative dispute resolution(ADR) mechanisms.
The entire concept of access to justice has seen several developments and is a constantly evolving process. The major developments have been traced out here into three broad categories with its significant highlights.
First Wave – This wave refers to an attempt to increase the general access to justice by increasing access to lawyers and the court system by way of legal aid. The main aim was to reduce the cost of seeking justice. The economically backward sections of the society could not take their disputes or grievances to the court system because of the fact that the cost of lawyers and the cost of the court was too high for them to be able to afford it. Several legal aid programs by lawyers, law firms, and the courts are in place to help the ones who cannot afford to approach the court on their own. The Indian Constitution also makes a provision in the form of Article 39A to provide free legal aid to the poor and weaker sections of the society and to ensure justice for all. For the realization of this provision, all courts also have an attached legal services authority. Legal aid enables representation in the court and is a step towards seeking justice, which essentially translates to providing access to justice to the economically backward section of the society.
Second Wave – This wave introduced the concept of representation of ‘diffuse interests’ to further the aim of access to justice. The rights of every person are clearly laid down and established along with a mechanism to ensure that they are protected. If any of these rights are breached, the aggrieved can knock on the court’s door. Different types of concerns or rights such as the right to religion, rights for the disabled, rights for women, protection for women and children, etc. are protected by the Constitution and other laws. The courts as well as the legislative body develop new and specific laws to protect these varied interests. To access justice, it is important that a person’s right and its appropriate protective remedy is recognized by the law. Representing group rights and collective diffuse-interests, even other than those of the poor are also important to ensure every person can have access to justice. Consumer rights or consumer interests and their protection is one such example.
Third Wave – For a long time, the concept of access to justice has focused on the ways to approach the existing system rather than the quality of justice itself. The newer reforms of access to justice have thus shifted focus towards developing new ways of access to justice. This wave represents a broad range of efforts to make justice more and more accessible but the one that stands out the most is the development of alternative means of resolution. The Alternative Dispute Resolution (ADR) would essentially be a step to provide ‘new’ access to justice. Unlike the first and the second wave which are based on advocacy, the third wave takes it a step further by building an alternate infrastructure to access justice. The idea is not to move away completely from the court and judicial system but to rather have a wide set of options. The burden on the courts and the delay that the adversarial system causes; in the hearing of cases, also creates a barrier to accessing justice. ADR can help to manage this barrier by providing an alternative to the traditional court system. It helps in not only expediting the process and customizing it to the timeline of the parties involved but also reduces the burden on the court system. It is a form of restorative justice where the parties involved can come together and collectively resolve their issues.
ADR through its various forms has helped the cause of access to justice even more. It has focused on reducing the costs, customizing the process according to the needs of the parties; establish trust in the process through confidentiality, etc. The alternative mechanism is preferred in terms of the quality and control of the process and results by the parties. The unique features of ADR i.e. the win-win situation unlike the court’s win-lose, preserving the relationship between parties, cost and time effectiveness, confidentiality are just some of the advantages which make it a good option and help in the access to justice.
These ‘waves’ do not mean that the different practices exist only during different periods of time and work separately. It is important to understand that these reforms, stated in the form of ‘waves’ are interrelated and continuing. When one new development takes place that does not mean that the previous development is completely at a halt. They can work simultaneously and build an effective system.
The availability of courts is not enough, appropriate measures have to be taken to also educate the citizens. Legal awareness is as important as legal aid and legal protection. Further, a court system where people fear it due to the complex procedure, do not access it due to heavy delays or do not have knowledge about their rights, etc. makes the abovementioned developments go in vain. Nevertheless, a blend of all the mentioned steps along with new developments, are the future of the concept of access to justice.