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Access to Justice for Marginalized People in India

Ayush Shukla is a law student at Shri Ram Swaroop Memorial University

Published onNov 25, 2020
Access to Justice for Marginalized People in India


Marginality is the experience that affects millions of people throughout the country. The marginalized people have relatively little control over the resources available to them. In 1995 when in India the Legal Services Authorities Act came into force the concept of Free Legal Aid for socially and economically vulnerable people was introduced. The Law aims to ensure justice for all on the basis of equal opportunity and the main objective is to offer free services of lawyers who volunteer their time for pro bono cases to those who cannot afford to pay. According to 2018 HDI report by UNDP India ranked 130 out of 189 countries.

“Law is the means and justice is the ends” and to achieve such ends our legal system must be accessible to all. Under the Directive Principles Of State Policy of Indian Constitution, Article-39A (Equal Justice and Free Legal Aid) states that- ‘The State shall secure that the operation of the legal 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’.

The Constitution of India provides for Free Legal Aid as a right under Articles-14, 21, 39A, 22(1) and 38(9) to the persons who are not able to afford a legal counsellor due to their financial problems or any other reason. In this study an attempt has been made to highlight the current status of marginalized population accessing towards justice, their position in the past, role and contribution of legal authorities, social media, NGOs, and some other initiatives taken on judicial level for the betterment of poor and needy people.

Keywords: Marginalized, Rights, Access to Justice


Indian Judicial System like those in Commonwealth countries, is firmly rooted in the common law tradition. India is a signatory to various international and regional instruments that seek to ensure access to justice as an inalienable right to citizen. The Indian Government has also introduced several policies and domestic legislations that seeks to regulate and promote access to justice for all. Law is the means and justice is the end and to achieve that end the law must be accessible to all. Some groups of people often fail to access justice.

To deny people their human rights is to challenge their very humanity. -Nelson Mandela

The word “access to justice” immediately stir up in our mind the idea that every person who seeks justice must be provided with the requisite monies to approach a Court of Justice. But that is not the only meaning of these words. Access to Justice may be defined as “the process through which people claims or obtains justice remedies through formal or informal institutions of justice and in conformity with human rights standards”.

This article argues for a more attainable aspiration. The article begins with history and development of the concept of access to justice in India, further followed by role and contribution of Supreme Court and High Courts, role of Legal Services Authorities in India, power of Judicial Review and PIL, and further concluding with various issues that are relevant for the access to justice i.e. need for adequate courts, court fees, and the Independence of the judiciary.


Justice- Social, Political and Economic is our Constitutional pledge enshrined in the Preamble of our Constitution. In a country like India, the concern of Legal Aid to the poor and needy is continuously on the rise. The embodiment of Article-39A in the year 1976 in Directive Principles of State Policy, instructed the State to ensure the justice on the basis of equal opportunity by providing Free Legal Aid. Article-39A (Equal Justice and Free Legal Aid) states that:- ‘The State shall secure that the operation of the legal 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.’1 However the courts are used by the richer sections to assert their legal rights while poor remain deprived of access to the Justice system. The fact of the matter is that mere existence of laws does not guarantee the enjoyment of rights by the citizens. It is believed that India has 32 million pending cases, the majority of which are in district courts, relate to criminal law and are pending for over two years. Another amazing statistic is that the government is the largest litigant. It is said that 46% of the pending cases have government as the litigant.2

Article-39A was the Constitutional authorization which was responsible to set the tone of development of Legal Aid Programme. It also includes the organisation of Lok Adalats through the State Legal Aid Boards with the Central Committee for Implementing Legal Aid Schemes, popularly known as CILAS headed by the sitting or retied judicial officer as the Chairman with two other members usually a lawyer and a social worker.3

Like other commonwealth countries, since 1952 the Government of India also started addressing to the question of legal aid for the poor in various conferences of Law Ministers and Law Commissions. In 1980, a Committee at national level was constituted to oversee and supervise legal aid programmes throughout the country under the chairmanship of Hon. Mr. Justice P.N. Bhagwati then a judge of Supreme Court of India. This committee came to be known as CILAS (Committee for Implementing Legal Aid Schemes).4

In 1987 Legal Services Authorities Act was enacted to give a statutory base to legal aid programmes. This act was finally enforced on 9th November 1995.

The contribution of Justice Krishna Iyer towards the development and incorporation of the concept of Legal Aid was tremendous. His report titled ‘Processionals Justice to Poor’ has gone a step further in enabling the recognition of the poor for the purpose of providing legal aid.

In 1971 Justice Bhagwati in a report on Free Legal Aid observed “even while retaining the adversary system, some changes may be effected whereby the judge is given greater participatory role in the trail so as to place poor, as far as possible, on a footing of equality with the rich in the administration of justice.”5

The report clearly suggests the colonial hangover of the Indian Legal System which has prevented it from realising its true potential. The report also made an effort to classify those categories of persons who are most in need of Legal Aid, they are: -

  • The poor in general.

    • Those persons belonging to Scheduled Castes or Scheduled Tribes, i.e. those who are both economically as well as socially exploited by the cultural elitists since time immemorial.

    • Those persons who either by reason of being inhabitants of backward areas or who are so geographically placed that their voice can not reach the courts of justice, e.g. People who are inhabitants of Schedules areas, Mountainous terrain’s ,landlocked regions etc.

    • The workman and the peasantry class who toil and labour to earn rewards for their hard work of which they are often deprived.

    • Women and children who are deprived social justice on grounds of biological infirmity.

    • Untouchables or those who are referred to as Harijans and who even after abolition of Untouchability under Article 17 of the Indian Constitution are shunned by the administrative class on the ground of their unacceptance in the community.

    • Those soldiers and armed forces personnel who in order to protect the borders are stationed at the edge of the land for long periods of time.

Justice Krishna Iyer realised the fact that though the system had been flagged off under the term “We the people of India” it had no longer continued in the same direction. The expert committee appointed under the

Justice Krishna Iyer realised the fact that though the system had been flagged off under the term “We the people of India” it had no longer continued in the same direction. The expert committee appointed under the chairmanship of Justice Iyer has made significant contribution towards the development of Legal Aid in India. The suggestions made by him can be summarized as :-

A National Legal Service Authority accountable to the Parliament but protected from official control was recommended. Simplification of the legal procedure and an emphasis on conciliated settlement outside court has to be the policy of legal aid schemes. The report adopted the three fold test laid down for determining eligibility. Means test to determine people entitled to legal aid prima facie- to determine whether there was a prima facie case to give legal aid or not Reasonableness test- to see whether the defence sought by a person is ethical and moral. In backward areas, legal advice bureau should be established in each development block. The report encourages the involvement of law students in legal aid schemes particularly for preventive legal services. Public law service should be an alternative available as against the private bar and legal services authority should fix the fees payable to the lawyer.6

Legal Services Authorities Act, 1987

On 11th October 1987, the President’s assent was accorded to the Legal Services Authority Act, 1987.The explanation offered by the Government was that a review of the working of CILAS had revealed deficiencies and that there was a need to have a statutory legal services authorities established at various levels to further the government’s commitment under Article 39A of the Constitution. The LSAA was discussed at the Chief Justice Conference and at the meeting of the chairpersons of the State Legal Aid and Advice Boards. As a result 56 amendments were proposed. It took 4 more years for the amending legislation to be approved by the Parliament and receive the assent of the President. This act was finally enforced on 9th of November , 1995.7

The Legal Services Authorities Act, 1987 was enacted to give a statutory base to legal aid programme and to constitute legal services authorities to provide free and competent legal services to the weaker section of the society to ensure that opportunities for securing justice were not denied by reason of financial or other disabilities and to organise Lok Adalats to ensure that the operation of the legal system promoted justice on the basis of equal opportunity.

The Government of India enacted Legal Services Authorities Act 1987 with the view to provide access to justice to all. Under this act the needy persons are entitled to legal aid on the expense of the state if they fall under any of the given criteria:-

  • Any person who is the member of Scheduled Caste\Tribe.

  • A victim of trafficking in human being or other.

  • A woman or a child.

  • A mentally ill or otherwise disabled person.

  • An industrial workman.

  • Facing a charge which might result in punishment.

  • A person under circumstances of undeserved want such as; being a victim of mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster.8

According to Legal Services Authority Act 1987, a National Legal Service Authority is established and legal service authorities are established in every state, district, and taluk level. The National Legal Service Authority is the apex body which reviews all the state legal service authorities. The intention of the legislators was to provide justice to all. In a country of over 100 billion population it is very difficult to provide justice to everyone. The legal authorities thus are working on very monumental task in providing access to justice to all the needy and aggrieved persons who are deprived of their rights. Even in procedural law of our country the provisions of legal aid has been laid down in, Section 304 of Criminal Procedure Code which sates that if the accused does not have sufficient means to engage a lawyer, the court must provide one for the defence of the accused on the expense of the state. It is very important to note that mere providing legal aid is not the intention of the legislation but the victim should be provided a quality legal aid. By mentioning the word quality, it means that state should provide a reasonable and competent lawyer to the aggrieved.

Legal Services Authorities in different states have been enshrined with this purpose to make access to justice to all. They play a very vital role and acts as a bridge between the needy and the courts. They are the link that shows the poor and needy the way to attain justice from the court; it includes providing counsel, paying court fees, and fulfilling other formalities of the court.


NALSA was formed on 9th November, 1995 under the authority of the Legal Services Authorities Act, 1987. Its purpose is to provide free legal services to eligible candidates (defined in Sec. 12 of the act), and to organise Lok Adalats for speedy resolution of cases. Under NALSA there are several schemes working for the welfare of marginalized people ,some of them are discussed below:-

The distinguishing feature of unorganised sector is non-applicability of most of the labour laws and other regulations providing for decent working conditions, job security and social security to the workers. The unorganised workers lack collective bargaining power and are therefore susceptible to excessive exploitation. They work under poor working conditions and receive far lower remuneration as compared to the organized sector. Most of the employment in this sector is seasonal and workers therefore have no job guarantee. The y use to live in slums without proper resources and sanitation. Heath care and maternity facilities are not available in these unorganized sectors. The affects of the above factors is that they are forced to live an undignified life.

In order to provide for social securities to all categories of unorganised workers, the Central Government has also enacted an umbrella legislation by the name of Unorganised Workers Social Security Act, 2008. Various social security schemes have been required to been floated for the benefits of the workers under the Building and Construction Workers Act, 1996 and Unorganised Workers Social Security Act, 2008.9 The objectives of this scheme are-

  • To institutionalize essential legal services to all unorganised workers.

  • To get the gaps in legislation plugged through coordination with government authorities and by initiating Public Interest Litigation.

  • To mobilize the machinery of State Government and the District Administration to identify and register all unorganized workers in all categories and to extend the benefits of all government schemes, as applicable to them.

  • To spread awareness among the employers regarding the statutory provisions and the need for providing decent working conditions ,living wages and social securities to the workers.

  • To disseminate information among the workers regarding their entitlements under the existing legislations.

  • To provide counselling and assistance to all categories of unorganized workers for their registration with the concerned authorities under the schemes available for their categories.

  • To assist the workers in availing the benefits of the scheme for which they are registered as per their entitlements.

The following principles shall be borne in mind by all Legal Services Institutions while implementing the scheme for unorganised workers-

  • The Preamble of the Constitution of India assures equality of status and opportunity to all citizens and to promote among them Fraternity, assuring the dignity of the individual. Article 42 mandates State for making provisions for securing just and humane conditions work and for maternity relief.

  • The Preambular promise of upholding the dignity of the individual cannot be fulfilled unless the dignity of labour is ensured.

  • The unorganized sector is one of the marginalized sector of society and they, as the citizens of the country, are equally entitled to right to work, just and humane condition of work, living wages, maternity relief and a decent standard of life.

  • The welfare measures initiated by the Government in the form of legislations or schemes etc. Require the intended beneficiaries or the victims to mobilize the system for realization of their rights. The workers in the unorganized sector belongings as they do, to the deprived and vulnerable sections of the society do not possess the capacity to mobilize the system.

  • The large system of categories of the unorganized workers, large population in each category and their vast geographical spread necessitates a project-approach to the issue of providing legal services to them. The Legal Services Authorities have to act as watchdogs against administrative inaction.10 NALSA (Child Friendly Legal Services to Children and their protection) Scheme 2015

Children as a class are vulnerable and our Constitution accords right to children and gives them special status. In this regard the parliament has enacted several programmes which are being run by Government. However there is lack of awareness in general public towards this issue. To spread awareness and to create sensitivity towards Children the scheme by NALSA i.e. NALSA (Child Friendly Legal Services to Children and their protection) Scheme 2015.

The objectives of the Scheme are-

  • To outline the basic rights and benefits that should be afforded to children.

  • To ensure legal representation to the children in need of care and protection and children in conflict with law at all levels.

  • To strengthen legal services, institutional care, counselling and support services at the national, state, district and taluk levels.

  • To create an environment in the juvenile justice system, where children are valued, encouraged and affirmed and have their rights respected.

  • To have database of all the existing central or state schemes, policies, regulations, SOPs, conventions, rules, declarations, and reports etc. Available for child welfare and protection.

The following principles shall be borne in mind by all Legal Services Institutions while implementing the scheme for children-

  • Every child has the right to have his or her best interests given primary consideration while providing legal services to the children in need of care and protection and child in conflict of law.

  • The welfare of children must always come first, regardless of all other considerations. Early intervention and support should be available to promote the welfare of the child.

  • Every child has the right to be treated with dignity and compassion and its worth is to be respected and protected.

  • A child shall be treated without discrimination of any kind, irrespective of the child’s caste, race, religion, beliefs, age, family status, culture, language, ethnicity, disabilities if any or place of birth.

  • Every child has right to be informed, right to be heard and to express views and concerns freely.

  • Ever child has the right to safety at all stages and he or she shall not be subjected to any harm, abuse or neglect etc. The privacy of a child shall be protected by legal services institutions at all levels.11

NALSA (Protection and Enforcement of Tribal Rights) Scheme, 2015

After independence, the Indian Constitution adopted many provisions to provide tribal people with special status and Parliament through various protective legislations made conscious efforts to safeguard their interest. The HDI of STs is much lower than rest of the population. The gap in the literacy rate is high. There are more ST families below the poverty line then those from other communities. Their percentage in government jobs is not in proportion to their population despite the provision of reservation. The condition thus is far worse than that of the rest of the population and they have not been able to reach the envisaged level of development, where they could benefit from the opportunities offered by a fast expanding economy.

This was the need that NALSA draw up a scheme for the Tribal people. To facilitate this, a committee was constituted to study the issue and come up with suggestions. The committee submitted a comprehensive report to the Hon’ble Executive Chairman, NALSA on the occasion of World Tribal Day. The present scheme NALSA (Protection and Enforcement of Tribal Rights) Scheme, 2015 is based on the report of the committee.

The scheme is aimed at ensuring access to justice to the tribal people in India. The access to justice would be facilitated in all its connotations, i.e. access to rights, benefits, legal aid, other legal services, etc., so that the assurance of the constitution of justice Social, Economic, and Political, is meaningfully experienced by the tribal population in the country.12


The introduction of the Lok Adalats added a new chapter to the justice dispensation system of this country and succeeded in providing a supplementary forum to the victims for satisfactory settlements to their disputes. Lok Adalats (People’s Court) established by the government settles disputes by principle of justice, equity, which are the guiding factors of the decisions based on compromises to be arrived at before such adalats. This system is based on Gandhian Principle. The first Lok Adalat was organised in Junagarh on 14th March 1982.13The movement has now subsequently spread to the entire country, the reason is only the pending cases and providing justice to the litigants in the queue.

The Legal Services Authority Act, 1987 has been enacted by the Parliament, whose aim is to organise Lok Adalats to secure that the operation of legal system promotes justice on the basis of equal opportunities. Chapter Vl of the act deals with Lok Adalats. The act created National, State and District Legal Service Authorities with the power to organize Lok Adalats.

In The Hussainara Khatoon Case, 1979, the Supreme Court said – the State can not be permitted to deny the constitutional right of speedy trial to the accused on the ground that the state has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to improving speedy trial.

The poor in their contact with the legal system have always been on the wrong side of the law. They have always come across “law for the poor” rather than” law of the poor”.14


Permanent Lok Adalat (PLA) – The other type of Lok Adalat is Permanent Lok Adalat, organised under Section 22-B of The Legal Services Authorities Act, 1987. PLAs have been setup as permanent bodies with a chairman and two members for providing compulsory pre-litigative mechanism for conciliation and settlements of cases relating to Public Utility Services like transport, postal, telegraph, etc. The jurisdiction of the PLAs is upto Rs. 10 Lakh.

National Lok Adalats- National level Lok Adalats are held for the regular intervals where on a single day Lok Adalats are held throughout the country, in all the courts right from the Supreme Court to the Taluk Levels wherein cases are disposed off in huge number.

Mobile Lok Adalats- They are organised in various parts of the country which travel from one location to the other to resolve disputes in order to facilitate the resolution of disputes through this mechanism.


The benefits that litigants derive through the Lok Adalats are many such as there is no court fees and if the case is already registered in the regular court ,the fees paid will be refunded if the despute is settled at the Lok Adalat. Disputes can be brought directly to the Lok Adalat instead of going to regular court. The decision of the Lok Adalat will be binding on the parties to the dispute and its order is capable of execution through legal process. There is no strict application of the procedural laws and Evidence act while accessing the merits of the claim by the Lok Adalat. The parties to the disputes represented by their advocates can interact with the Lok Adalat judge directly and explain their stand in the dispute and the reasons therefore, which is impossible in regular courts. Last but not the least, faster and inexpensive remedy with legal status.

Objective of Lok Adalats is to settle the disputes which are pending before the courts, by negotiations, conciliation and by adopting persuasive common sense and human approach. The system has received laurels from the parties involved in particular and by the public and legal functionaries in general. Through this mechanism, disputes can be settled in a simpler, quicker and cost-effective way.


Legal awareness lies at the base of any effort towards legal empowerment. Critical knowledge of legal provisions and processes, coupled with the skills to use this knowledge to realize rights and entitlements will empower people to demand justice, accountability and effective remedies at all levels. Legal awareness helps to promote consciousness of legal culture, participation in the formation of laws and the rule of law.

Social Media as a tool for spreading legal awareness can be used as-

  1. Social Media nowadays is the best way to regulate a message. To spread a word in Urban areas, simply by advertising a Facebook page, frequently giving updates on Twitter and using other social networking sites can make ample of difference.

  2. Imagine if the legal awareness campaign associates itself with mobile operators and send just SMS frequently and have a good messaging scheme. If the message is one worth for example- Under Section 51 of Cr.P.C., a female can only be searched by a female with strict regard to decency.


Non-Governmental Organisations (NGOs)

The World Conference on Human Rights appreciated the contribution of NGOs in increasing public awareness of human rights issues, to the conduct of education, training and research in this field and to promotion and protection of all human rights. It also urged NGOs to intensify their efforts in co-operating and co-ordinating their efforts against human rights violation in general and against the evils like racism and racial discrimination. The World Conference has also urged the NGOs to intensify their efforts for the promotion and protection of human rights of women and the girl child.

As things stand today, virtually all universities in the country with different capacity and skill run some sort of Legal Aid centers. One of the most vital thing that has happened in the process of opening up all the legal centres to serve as legal aid clinics, the legal education reform swept through the universities in the country making it mandatory that students not only need to learn the theoretical concepts of law , but some practically relevant experiences as well. The Universities based Legal Aid Centres provide full-fledged legal service for the indigent section of the society. The services of the centres are extended to the commonly known part of the society as indigent, vulnerable and people living with HIV/AIDS. As such, the legal aid services that are provided by these centres empower the client in decision-making on the matters that presented to them.


Legal profession is monopolistic in nature and this monopoly itself inheres certain high traditions, which its members are expected to upkeep and uphold. The role of the advocates in the implementation of schemes becomes pivotal due to the fact that legal profession being monopolistic, the various schemes of legal aid under the act can only be put into operation through advocates. The advocate is paid by the Legal Services Authority but this payment is generally quite low as compared to the normal fees charged by the advocate.

Para Legal Volunteers Scheme aims at imparting legal training to volunteers selected from different walks of life so as to ensure legal aid reaching all sections of people. The Para-Legal Volunteers are expected to act as intermediaries bridging the gap between the common people and Legal Services Institutions to remove impediments in access to justice. Ultimately, the process aims at Legal Services Institutions reaching out to the people at their doorsteps rather than people approaching such Legal Services Institutions.

Prison Reforms

A prisoner is one whose liberty has been denied and who has been confined to a particular place against his/her will. The prisoners have human rights, full constitutional rights, right to access to good food, to shelters, to security, to legal representatives, the right to meet their family members and relatives. The only right that they don’t have is that they can’t be released only a order by court can release them. The work of NALSA have been influenced by a number of judgements which have asked these legal systems to do something. One of the main judgement is the Kasab Judgement that emphasises on the importance of legal representation.15


Legal Education should not only produce lawyers but should be regarded as a legal instrument for social design. The main aims of legal education are: to train students for legal profession, to educate students to solve individual client’s problems as well as to solve the society’s problems in which he lives, to provide a center where scholars must contribute to understanding of law and participate in their growth and improvement, to inculcate students with operative legal rules and to provide them adequate experience to apply these rules, to point the right road for future development. Thus, legal education aims at furnishing skills and competence, for creation and maintenance of just society.

Information Technology

Taking into consideration the fact that technology has advanced the customary way of life, it becomes quite a necessity that the law and the teaching of law must move accordingly. At present the changes brought about by the use of technology can be seen in law, legal education, research and practice. For instance students, researchers, and teachers can in the comfort of their study tables access millions of research materials online including laws and judicial decisions of the country and other jurisdictions.


The major objective of the study is to find out effective implementation of the provisions of Legal Services Authorities Act. This study helped to understand the actual role-play by the authorities, Law schools , paralegals, advocates in the process of Legal Services in this context.

Legal aid is the socio-legal movement spreading justice to the poor and spearheading peaceful change under law towards the Constitutional goal of just, classless order. Legal Aid as the significant welfare right is not the exclusive product of political right to seek defence in the court of law. Legal Aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal Aid is regarded as central in providing access to the justice by ensuring equality before law, right to counsel and right to a fair trial.

Further referring to Article 39A which is the fundamentals in directive justice emphasized that, the right to free legal services is, therefore, clearly an essential ingredient of reasonable, fair, and just procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21.

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