Hijastro of the Nation
Hijastro of the Nation
- Pency Agarwal, National Law University, Odisha
India is a secular country and provides equality to all, but that unfortunately do not have any kind of retrospective effect. The harm already caused to the people cannot be reverted. The constant effort has been taken by people like B.R Amebedkar to ameliorate the condition of these people. But that is taking time and is a very slow and gradual process, and it is believed that justice delayed is justice denied.
On the other hand justice is just an abstract. It differs from person to person. A justice for one may be unjust for the other. One of the major examples; of it can be of provision such as prevention of child labour, although it has been a good provision as a whole but this might be a unpleasant for a particular segment. For example were the child has to work to fill his stomach and to serve the essentials. A law might be justiciable for one and not for others or useful at a point of time but becomes vague on the other instance. There are continuous showcase of the effort that are taken to make laws more justiciable as well as accessible but that has not changed the reality at any instance.
Another major example that can be taken from the current problems people are facing due to this lockdown, no doubt it is necessary for the protection of people and it will lead to reduction of number of cases of COVID19. But when we see the other side of it that is due to this lockdown many poor people will die out of starvation and even after the lockdown is over there are lots of probability that many people will suffer, this can also lead to the increase in the suicides. There is no count of this, although they are not directly getting affected but they are definitely getting affected indirectly.
Through the above sated examples it is clear that there are instance where people are not even counted in the list of deprived. This makes the access to justice more distanced. They can be considered like a step child who gets legal rights. But that can be accessed only when they equally have social, moral, economic support. Just like that the downtrodden people can only taste justice when they get these supports, so they are considered the hijastor of the country, that is the step child of the Nation.
However there are some of the provisions that were made to bring people on the same level. Some of the provisions are for equal representation for all, the Article 14, Article 22 and Article 38 of the Indian Constitution deals with it.
Article 14 of Indian Constitution
The article just states that there should equal protection of law and the equality before law. For this it is necessary to treat equals equally and unequal differently, if we treat unequal at par with the others that would be unjust for them.
This provision clearly represents the inequality that was embedded in the society, such a big provision can only be a result of dreadful situation.
Article 20 of Indian Constitution
There are some mandates in this article which puts light on the fact that the trial shall be fair in the view point of not only the victim and the accused but also the society. So it is mandatory that the accused also gets the right to choice the council of his choice for his representation, who can cross examine witness and present evidence for his defence.
For instance, were the person is an accused they get protections such as no double jeopardy, he cannot be punished for the offence which is not considered as an offence under the law enforced etc. This however protects the accused side from getting exploited.
Article 39A of Indian Constitution
This article can be considered a step ahead, it however tries to put up the idea of a welfare state. This states that the state should provide justice through equal representation so that everyone gets opportunity. It further also states that the representation that is provided by appointing a council shall be free of cost, so that no one shall be deprived of justice due to lack of economic or other support.
This article becomes crucial when it is read with Article 21, as it fulfils provision that is interpreted under section 304 of CrPC. Due to this even the terrorist like Kasab was even provided with a legal practitioner for his defence, as Article 21 that is right to life and personal liberty is a fundamental right that has been provided to both the citizens as well as the non-citizen of India.
In spite of so many provisions provided by the statutory law as well as the legislative policy, there are inequalities that prevail and in the light of these provisions the inequality becomes invisible. As we can see that although legal aid is being provided to the people but there are many highly paid lawyer who are capable of moulding the evidence as well as the judge. This is something which is generally not been taken care of. This is the biggest problem of an adversarial system, on the other hand if we take the path of an inquisitorial system were the judge acts much like a police and himself steps into investigation and the primary role of the lawyer is just assist the judge to gather evidence and reach to a justiciable solution. But in India due to having an adversarial system there is tremendous monitory and sometimes even political power that prevails.
At very initial levels there are panchayat or Human Rights Commissions that kind of follow inquisitorial method of adjudication so the access to justice becomes quite easy at that level but when we move up to the ladder the provision is not applicable and the problem still continues,
Then a question can be raised that why there is a need to go to a higher court so there are two reasons for that. The first is that many of the offences are not punishable here, as they do not have the jurisdiction to give punishment above a certain limit or to deal with cases above a certain amount. Secondly the other party do have the right to appeal and that is the provision that they take benefit of.
The major problem is not that the access to justice is denied, the justice is denied, although people are getting the provision to get to justice but is just like horizon that looks closer to achieve but is unachievable. It is illusionary, as different people see it in different ways and no one can be said to be wrong. Even if in cases were all want to see the same end the way to get there is full of deviation, like evidence, lawlessness etc.
To sum up, it can be seen that there is a deep inequality that prevails in the society and there is a requirement of protection of certain group for a holistic development. Although there are enough facilities made for the access to justice but still conquering it is still a long battle. Apart from this there are many people who consider that these provision are more than sufficient that brings a barrier which restricts govt even if they want to bring amendments to the provision.
References
[1] Constitution of India 1950, a 14
[2] Constitution of India 1950, a 20
[3[Constitution of India 1950, a 39(A)
