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TITLE OF THE RESEARCH PAPER

JUSTICE IS EXPENSIVE, EVASIVE AND DREAM FOR POOR LEGAL

FRAMEWORK

By

Name of the Student: P. RAJ KUMAR

R0ll No.: 18LLB068

Semester: IV

Name of the Program: 5 year (B.A., LL.B.)

NAME OF THE FACULTY MEMBER: Prof Dr. Bhagyalakshmi

Date of Submission:
SUBJECT: LAW AND POVERTY

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH
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Acknowledgement:

I am highly indebted to my hon’ble law and poverty professors, prof. Dr. Bhagyalakshmi
mam, for giving me a wonderful opportunity to work on the topic: “JUSTICE IS
EXPENSIVE, EVASIVE AND DREAM FOR POOR LEGAL FRAMEWORK” and it is
because of his excellent knowledge, experience and guidance, this project is made with great
interest and effort. I would also like to thank my seniors who have guided my knowledge of
doing research on such significant topic. I would always also take this as an opportunity to
thank my parents for their support. I have no words to express my gratitude to each person
who have guided and suggested me while conducting my research work.
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TABLE OF CONTENTS

1. INTRODUCTION

2. ACCESS JUSTICE TO POOR

3. SOCIAL BARRIERS

4. GEOGRAPHICAL AND PHYSICAL BARRIERS

5. FINANCIAL BARRIERS

6. INSTITUTIONAL BARRIERS

7. PROCEDURAL BARRIERS

8. CONCLUSION

9. BIBLOGRAPHY
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SYNOPSIS

TITLE OF THE PROJECT: JUSTICE IS EXPENSIVE, EVASIVE AND DREAM

FOR POOR LEGAL FRAMEWORK

INTRODUCTION:

In recent years there has been important progress in the fight against poverty. Millennium
Development Goal (MDG) 1 – the target of reducing the extreme poverty rate by half - was
reached at the global level in 2010, five years ahead of the 2015 deadline. However, with
more than 1 billion people still affected worldwide, the scale of extreme poverty remains
appalling. Moreover, progress on poverty reduction has been very uneven across and within
regions and countries. Many of those who have not been reached are ‘the poorest of the
poor’, suffering from profound marginalisation and social exclusion. Meanwhile, inequality
is a significant problem both on a global scale and within countries. Globally, using market
exchange rates, the richest population quintile gets 83 percent of global income with just one
percent for those in the poorest quintile.3 Statistics clearly show that inequality has risen in
recent years within wealthy, middle-income and developing countries in nearly every region
of the world.4 The onset of the global economic and financial crises has exacerbated
deprivations and resulted in poverty and inequality becoming not only more widespread, but
more deeply entrenched. Across both developing and developed countries, 205 million
people were unemployed in 20115, the highest number of unemployed in history. Moreover,
the austerity measures that some governments are implementing in response to the crisis are
having a disproportionate impact on the poorest segments of society increasing inequality
and poverty even in developed countries.

OBJECTIVE OF THE STUDY

The 0bjective 0f the study is t0 discuss ab0ut the Justice Is Expensive, Evasive And Dream
For Poor Legal Framework

RESEARCH QUESTION
 How poor can access the justice? Without any knowledge over it?
 Is illiteracy is taking justice away from the poor?
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RESEARCH METHODOLGY

The Research W0rk is D0ctrinal and based 0n s0urces such as Websites, J0urnals and
Internet S0urces. The referencing style f0ll0wed is BLUE B00K 19th Editi0n f0rmat 0f
citati0n. The Research pr0cess deals with c0llecting and analyzing inf0rmati0n t0 answer
questi0ns. The Research is purely descriptive in its b0undaries 0f the t0pic.

LITERATURE REVIEW

Magdalena Sepúlveda Carmona and Kate Donald

In this article, the auth0r discussed ab0ut the poor and what causing poor from reaching
absolute justice.

Ms. Komal audichya

The auth0r 0f this article explained ab0ut the concept to access justice for poor

SCOPE OF THE STUDY

The sc0pe 0f the study is restricted t0 the Justice Is Expensive, Evasive And Dream For Poor
Legal Framework

SIGNIFICANCE OF THE STUDY

The significance is we get t0 kn0w ab0ut h0w the poor can access the justice and what are

reasons that avoiding poor from reaching justice.

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INTRODUCTION:

1
Access to justice has different meaning in different societies. Even if defined differently, it

always has inherent relationship with dispute resolution as the latter’s purpose is to do justice

only. Hence access to justice is synonym with access to dispute resolution method provided

by the state. This natural right didn’t require affirmative state action but with the emergence

of welfare state it doesn’t mean only to litigate or settle the claim but also equal, affordable,

quick access to the forums and enforcement of relief which is individually and socially just.

The Constitution provides substantive basis for this by guaranteeing certain fundamental

rights such as, equal protection of laws, equality of status and opportunity, the right to life

and personal liberty to all its citizens and on violation of these rights to approach the court.

Even the Supreme Court has always tried to interpret the fundamental rights along with

directive principles to make access to justice easier for the poor and underprivileged.

However, the real experiences show that access to justice has become inaccessible. The cases

pending before the courts, high costs, complicated procedure, paucity of awareness etc. have

paralyzed the legal system. This paper critically analyses the reasons for lack of access and

suggests reforms which need to be initiated to ensure access to justice to the poor and

marginalized population of the rural and tribal communities. Concept: Access to Justice Law

is the means and justice is the end and to achieve that end the law must have legal system

accessible to all. Access to justice gives life and meaning to law. “Nothing rankles more in

the human heart than a brooding sense of injustice. Illness we can put up with. But, injustice

makes us want to pull things down. When, only the rich can enjoy the law, as a doubtful

luxury, and the poor, who needed most, cannot have it, because, it’s expense puts it beyond

their reach, the threat to the continued existence of free democracy is not imaginary but very

real, because democracy’s very life depends upon making the machinery of justice so

1
Associate Professor, Jaipur National University, Jaipur.
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effective that every citizen shall believe in and benefit by its impartiality and fairness”- MR

Justice Brennan of the US Supreme Court. The phrase “access to justice” can’t be defined

accurately without defining the term justice. 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 equality. 2The

concept of ‘Access to Justice’ constitutes- “First a strong and effective legal system with

rights enumerated and supported by substantive legislations.” “The second is a useful and

accessible judicial/ remedial system easily available to the litigant public.” It “therefore

means that the ability to approach and influence decisions of those organs which exercise the

authority of State to make laws and adjudicate on rights and obligations.” Access to justice is

defined in the black’s law dictionary as “the ability within a Society to use courts and other

legal institutions effectively to protect one’s rights and pursue claims.” It considers a

potential system acquiring appropriate legal remedies within the Civil and Criminal justice

fields. Judiciary, being an effective judicial system, has an important role in ensuring access

to justice.

ACCESS TO JUSTICE AND CONSTITUTION in India Apart from the Universal

Declaration on Human Rights and International Covenant on Civil and Political Rights the

Constitution of India, the living document and basic law of this country, provides substantive

basis for access to justice. In its preamble only it stands for securing justice social, political

and economic to all the citizens. It guarantees fundamental rights, in its Part III from Articles

14 to 32 to every individual. These rights are not absolute but they are protected under Article

13 of the Constitution which prohibits that enactment of any law which is inconsistent with

the fundamental rights.

2
Research Scholar, Jawaharlal Nehru University, New Delhi.
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It declares through Article 14 that: - “The state shall not deny any person equality before law

or equal protection of laws within the territory of India.” 3So every citizen in India,

irrespective of his social, economic and political stature, has accessibility to the courts in the

same manner equally and indiscriminately by virtue of article 14 of the Constitution.6

According to Article 21 of the constitution “No person shall be deprived of his right to life

and personal liberty except in accordance with procedure established by law’. The procedure

which restricts this fundamental right should be fair and effectuate and must answer the test

of reasonableness laid down under Art.14. Therefore, this non arbitrary and fair procedure is

making available the court process legal services to both the parties of the dispute. The

Constitution provides safeguards when the fundamental rights are violated by the state in the

form of right to constitutional remedy i.e.to have direct access to the Supreme Court or High

Courts having the power of extra ordinary writ jurisdiction under Article 32 and Article 226

respectively. Article 32 is itself a fundamental right. Directive principles of the Constitution

impose on the State to promote and secure justice through Art.39A of the Constitution in

following terms; “The State shall secure that the operations of the legal system promote

justice, on the 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 is not denied to any citizen by reason of economic or other disabilities”. In our country

where the poor and the people living in rural and tribal areas are socially and educationally

backward, the above mentioned provisions of the Constitution become very significant. As

discussed above the Supreme Court has widened the scope of these provisions of the

Constitution which has helped the indigent and socially disadvantaged class especially in

rural and tribal areas. 4But still large number of such people do not have access to justice.

They still regard that the end of justice does not lie within their reach because the means to
3
Rawl, J., A Theory of Justice, Edition 1997,Cambridge, Cambridge University press, at 11.
4
Kaifulla Ibrahim, F.M., J., Rule of Law & Access to Justice, 31.01.2014- 02.02.2014, Tamil Nadu State
Judicial Academy
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justice i.e. the law and the legal system create many impediments. 5For them the law still

remains an enigma and justice remain unapproachable. The rule of law provides for equal

access to justice to all the citizens but these people have lack of knowledge about fact that

law is a social tool designed as a means to access the justice and is not concerned with social

and economic factors of the justice seeker. Under such circumstances the National

Commission to Review the Working of Constitution (NCRWC)11 wanted to incorporate this

right as fundamental right as Art.30 A in the Constitution in the following terms; “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 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 deem to include the right to reasonably speedy and effective

justice in all matters before the courts, tribunal or other for and state shall take all reasonable

steps to achieve the said objectives.” Access to Justice and Public Interest Litigation One of

the recent modes of making access to justice reality is by way of filing a Public Interest

Litigation. The judiciary is trying to remove the obstacles between the poor and the justice

system. Justice P.N. Bhagwati heralded the new era as now the court permits public interest

litigation at the instance of “any member of public or social action group acting bona fide”

for defending the Constitutional and Legal rights of the weaker sections.13 He broadened the

concept further in the case of People’s Union for the Democratic Rights v. Union of India14

wherein he stated; “It would not be right or fair to expect a person acting pro bonus public to

incur expenditure out of his bag for going to a lawyer and preparing a regular Writ petition.

In such a case a letter addressed by him can legitimately be regarded as an appropriate

proceeding” The scope of common rule of locus standi was expanded and the conservative

stand was discarded to increase the access to justice for the disadvantaged. Justice Krishna

Iyer mentioned, “If the centre of gravity is to shift, as to the preamble of Constitutional
5
Menon Madhava, N.R., “Serving the justice needs of poor”, The Hindu, December 3, 2013
 P a g e | 10

mandate, from the traditional individualism of locus standi to community orientation of

Public Interest Litigation.”15 But some criticize PIL as an outcome of judicial populism and

raise questions about its legitimacy, limitations and impact. It is also limited by public

interest advocates’ dearth of resources to investigate the disputed matter and achieve definite

remedies. Access to Justice and Right to Free Legal Aid The concept of legal aid can be

witnessed in the 40th paragraph of the Magna Carta, which is stated as under;

6
Our constitution provides for free legal aid as a right, to persons who due to financial or any

other reason cannot afford a counsel through Articles 14, 21, 39 A, already discussed above

and Articles 22 (1) and 3816 of Constitution of India. In a welfare State where the legislation

is complex and the people from marginalized communities often find difficult to know what

his rights are and how to defend them in a court, this right has utmost importance. It’s not

only the Constitution but the case laws also have been developed to elaborate this right. The

Supreme Court expanded this right in MH Hoskot’s case. where Justice Krishna Iyer 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 (to the Supreme Court) 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.” In Menaka Gandhi v. UOI Justice P.N. Bhagwati, made the following

observations:- “We do not think it is possible to reach the benefits of the legal process to the

poor to protect them against injustice and to secure to them their constitutional and statutory

rights unless there is a nation-wide legal service programme to provide free legal services to

them." He stated further in Hussainara Khatoon v. State of Bihar “This is a constitutional

right of every accused person who is unable to engage a lawyer and secure legal services, on

6
The Indian Supreme Court stated in Keshav Singh Re AIR 1965 SC 745 “The existence of judicial
power in that behalf must necessarily and inevitably postulate the existence of right in citizens to move
the court in that behalf.”
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account of reasons such as poverty, indigence or incommunicado situation and the State is

under a mandate to provide a lawyer to an accused person if the circumstances of the case

and the needs of justice so require, provided of course the accused person does not object to

the provision of such lawyer.” 7The state in pursuance of its role under the Constitution

enacted suitable legislation such as NALSA (National Legal Service Authorities) Act 1987

which deals with matters like legal aid, legal literacy and legal awareness. The legal aid

system presumed that the victim was aware about her rights and how to approach the court,

the legal aid offices were available in remote villages and tribal areas and that the lawyer

appointed was competent to do the job suitable to the needs of rural/tribal population. These

presumptions did not work and became irrelevant to the concerned marginalized population.

Access to Justice & Alternative Dispute Resolution Since large number of people in this

country, are poor, illiterate, backward or oblivious, the State laid the concept of Alternative

Dispute Resolution to promote justice on the basis of equal opportunities. Lok Adalats,

Grama Nyayalayas, Ombudsman and Legal Service Authorities under Legal Service

Authorities Act 1987 are part of this legal system which aim at rendering social justice to

such people and which is speedy and inexpensive. Today the courts may ask the party to go

for arbitration, mediation and conciliation. Dr A.S. Anand, former Chief Justice of India, had

wished that by increasing the power of ADRs, the next century would be not of litigation but

rather of negotiation, conciliation and arbitration. The present ADR system is not very

effective. Conciliation and mediation under ADR process are not effective as mediator or

conciliator does not have the power or to order a party to appear and defend a claim.

Moreover, the losing side can’t be compelled to follow a decision. Under ADR process, the

party can waive their rights which are against the mandate of the Constitution.

7
http://lawmin.nic.in/ncrwc/ncrwcreport.htm accessed at 18th October 2015
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8
To Expand the Reach and Access of Justice As discussed above the present legal system is

not adequate to protect the legal rights of poor and people living in rural or tribal areas. These

people find the system alien and hence do not have access to justice. It requires expansion to

reach these marginalized people and for that certain suggestions are given below:- 1. The

customary idea of "access to justice" as understood is access to courts of law which has

become out of reach of above mentioned people due to different reasons for example, abject

poverty, social and political backwardness, illiteracy, ignorance, procedural conventions and

the cost. One solution is to educate masses and make them aware about complex legal

procedures and rights and reliefs provided to them under Constitution as well as under other

statutes. Cost of litigation required to be reduced or make it accessible for the common poor

man as it is not possible for him to bear the burden of complex and expensive process of

litigation.

2. There exist several barriers to justice in the form of financial, geographic, linguistic,

logistical, or genderspecific. Emphasis must be put on improving quality and quantity of

justice in the form of better prepared defense attorneys, more citizen-oriented court staff,

more reasonable hours, better information about the justice system and more no. of

courtrooms in each district. Although procedural conduct and rules have already been laid

down, what stands here as an important requisite that there is strict adherence on behalf of

police authorities, judges, lawyers, law officers as well as protection of legal rights.

3. Since most judges and lawyers are not aware of the problems present in rural and tribal

communities which require legal aid the most, the programmes to enhance and strengthen the

knowledge of such people can bring successful change in development of legal aid. To

increase the public knowledge of the legal system, legal information centers must be

constituted which can offer free or low cost legal advice. Legal aid schemes can be supported

8
As quoted in MH Hoskot v State of Maharshtra (1978) 3 SCC 544 at 553
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by para legal aid schemes run by NGOs. The future lawyers at the law college level must be

trained and educated to give legal assistance to rural and tribal people to bring the desired

changes.

4. More ADR centers should be created for settling disputes out-of-court especially in rural

and tribal areas. Mediation and negotiation must now become part of constitutional schemes.

Ombudsman does not have the power to make its decision binding on the Government. This

limitation must be overcome; its decision should be binding on Government.

5. The dialect of the law, constantly in exceptionally difficult and complicated English,

makes it ambiguous even to the proficient or educated individual and this is the dialect that

courts and legal counselors are comfortable with. Therefore, the language needs to be

simplified so as to make it accessible for the common masses.

6. In a country like India where adversarial model is widely practiced, the expediency of the

litigation process has been compromised. Average time taken by civil case to settle is around

20 years. This problem of delay is due to the extended role of advocates in the litigation

process. Despite being officers of the Court, they do not have any accountability towards

expedient disposal of cases. Similarly, there is no accountability of the judges to dispose of

cases as early as possible.

7. To increase the physical availability of courts, we must increase number of High Courts

and subordinate courts in the states. Moreover, the powers of Family Court can also be

strengthened.

SOCIAL BARRIERS:

9
Due to deeply entrenched discriminatory stereotypes that assume that persons living in

poverty are lazy, irresponsible, indifferent to their children’s health and education, dishonest,

9
Office of the High Commissioner for Human Rights in Nepal, 2011, p. 66.
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undeserving and even criminal, police officers, court staff and other justice sector personnel,

who reflect the discriminatory attitudes of wider society, often show discrimination or bias

against the poor in their decisions or behavior. As a consequence, persons living in poverty

are not treated fairly, efficiently and effectively throughout the justice chain, or in informal

adjudicatory mechanisms. Stigmatization and prejudicial attitudes generate a sense of

shame,22 discouraging persons living in poverty from approaching public officials and

seeking the support that they need. Not wishing to expose themselves to even greater social

discrimination or abuse by the authorities, persons living in poverty may refrain from

claiming entitlements or challenging abuses. This situation may be exacerbated when people

living in poverty belong to groups that are under-represented in the justice sector and law

enforcement personnel, such as ethnic minorities and indigenous peoples.

10
GEOGRAPHICAL AND PHYSICAL BARRIERS:

While excessive police deployment is problematic in some communities living in poverty,

especially in urban areas, the absence of police and other institutions necessary for the

administration of justice in rural, poor and marginalized areas is a common problem.

Courthouses, particularly appeal courts, are often located only in capital cities or large towns.

Police officers, prosecutors and lawyers are also concentrated in urban areas, along with

registries for land titling, and births, deaths and marriages. For instance, about 84 per cent of

the population of Cambodia lives in rural areas, far from courts that are all installed at the

provincial and municipal levels.30 In such circumstances, persons living in poverty often

have to travel long distances at great cost to engage with the justice system, exposing them to

unfamiliar environments and unsafe conditions. Such factors often act as a persuasive

deterrent against seeking redress from judicial or adjudicatory mechanisms, or may indeed

10
According to the 2010 census, only 39.3 per cent of the population is literate in Portuguese, compared to
77.8 per cent who are literate in Tetum. See UN Special Rapporteur on Extreme Poverty and Human
Rights, 2012 (A/HRC/20/25/Add.1).
 P a g e | 15

represent an insurmountable obstacle for the poorest and most marginalized. Those who

experience limited mobility, such as older persons or persons with disabilities, or those for

whom travel is more difficult or dangerous, including women and children, are particularly

affected. For the poorest people, the need to travel a long distance to reach police stations,

court houses or public registers often implies that they are in practice unable to seek redress

or protection from violence, abuse and exploitation, and have greater difficulty in accessing

documents such as birth certificates or land titles that are essential as evidence of their rights

when they are contested, in land or inheritance proceedings or even forced evictions. Such

distances may also affect the efficacy of the justice system and imply delays and needlessly

lengthy detention periods. For example, in the state of Himachal Pradesh, India, there is only

one ‘Special Home’ (juvenile detention centre) in the entire state, with young people from

across the State detained here. Those detained are required to appear 3–4 times a month at

Juvenile Justice Boards, which take place at a significant distance, without sufficient means

to pay for travel costs. This situation contributes to unacceptable delays before the Juvenile

Justice Boards, translating into longer detention periods for young people accused of a

crime.31 The poor are also disproportionately impacted when courts and police stations are

not appropriately designed to ensure accessibility for those with physical impediments, and

when court processes are not adaptable to the needs of persons with physical disabilities.

Even in developed countries, police stations and courts are often not wheelchair accessible.

Where measures are not in place to enable physical access to all and to adapt their processes

for those in need (whether they are defendants, claimants, witnesses or jurors), such persons

are excluded from accessing and benefiting from the justice system.
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FINANCIAL BARRIERS:

Legal aid is particularly important for persons living in poverty who are accused or are

victims of crimes, as they face a range of obstacles such as negotiating bail procedures, pre-

trial detention, trials and sentencing, and appeals. 31 Asian Centre for Human Rights, 2012,

pp.1–18 A HUMAN RIGHTS BASED APPROACH TO ACCESS TO JUSTICE Legal

assistance is also essential in civil matters when a person does not have sufficient resources to

pay for legal assistance and without such assistance she is prevented from asserting her

rights. 11Lack of legal aid for civil matters can seriously prejudice the rights and interests of

persons living in poverty, for example when they are unable to contest tenancy disputes,

eviction decisions, immigration or asylum proceedings, eligibility for social security benefits,

abusive working conditions, discrimination in the workplace or child custody decisions. The

exclusion of certain categories of claims from the scope of free legal aid, such as housing,

divorce or child custody proceedings, or exclusion of representation before quasi-judicial

tribunals such as welfare or employment appeal boards, discriminates against the poor. The

legal processes which relate to such civil matters are often extremely complex and their

requirements onerous, creating insurmountable obstacles for those without the assistance of a

lawyer, particularly if the other party enjoys such assistance. A study in Ireland shows that

those appealing social welfare decisions through the Social Welfare Appeals Office are not

on an equal footing as they do not automatically have access to all information on their social

welfare file, nor are they allowed access to previous decisions that may be relevant to their

case. In addition, they cannot secure representation through the civil legal aid scheme and

thus are forced to navigate the bureaucratic and legal labyrinth alone.

INSTITUTIONAL BARRIERS:

11
Asian Centre for Human Rights, 2012, pp.1–2.
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Shortfalls in financial and human resource allocations to courts, police and prosecution corps,

and insufficient training and capacity-building for judicial and law enforcement officers,

translate into failures in the judicial system that infringe upon access to justice. Such failures,

including delays (see below), flawed or insufficient evidence-gathering, lack of enforcement,

and abuse, undermine the effective functioning of judicial and adjudicatory mechanisms and

undermine human rights. Poor functioning of the justice system particularly affects the poor,

because pursuing justice requires a much greater effort and investment in terms of money and

time for them, while their chances of a just and favourable outcome are worse. When judicial

systems receive inadequate financial and human resource allocation from State budgets,

police stations, prosecution corps, and courthouses are understaffed and poorly equipped, and

benches are deprived of adequate numbers of judges. The result is serious neglect and even

mistreatment of those seeking justice, which is more pronounced for the most disadvantaged,

whose cases are usually under-prioritized. Non-registration of complaints by the police is a

practice common in over-burdened and under-resourced criminal justice systems. In such

cases, it is usually the complaints of persons living in poverty that go unregistered, due to

bias, discrimination, and their disempowerment and lack of knowledge and information about

their rights. Cases involving gender-based violence, notably rape allegations, are often left

unregistered, particularly when the victim is a woman living in poverty and lacks awareness

or means to pressure the police to investigate.

PROCEDURAL BARRIERS:

Many persons living in poverty are de facto deprived of accessing courts and other public

services such as education and healthcare as they lack a legal identity. According to

UNICEF’s calculations of registrations at birth, the number of people without a legal identity

is in the tens of millions, with more than 51 million births going unregistered every year.
 P a g e | 18

12
There are several reasons why many children and adults are not formally registered. Persons

living in poverty may lack information about formal registration or its benefits and so fail to

register without full understanding of the impacts of not doing so. Moreover, high cost,

complexities, excessive documentation requirements, geographically distant offices and time-

consuming processes of registration are great disincentives to accessing registration services

for the poorest and most marginalized. In addition, social barriers that prevent the registration

of particular groups of children, such as children with disabilities and children from minority

ethnic groups, impact disproportionately on the poor. While in some countries birth

registration may be provided free of charge in health centres, many people living in poverty

do not give birth at health centres. When people try to register their children at a later date to

obtain government benefits such as education and social welfare, they face even more

complicated, costly, and lengthy hurdles to registration. In Indonesia, approximately 60 per

cent of children under five years of age do not have birth certificates, and half are not

registered anywhere. Compounding the lack of comprehensive birth registration, bureaucratic

hurdles and an over-centralized system have led to public apathy towards registering

children. Corruption is also an issue as many middlemen seek to profit from the civil

registration mechanism. Consequently, instead of benefiting from a free service, many people

end up paying a third party anywhere from Rp100,000 to Rp800,000 (about $10 to $80) for

this basic task, a tremendous financial burden for most Indonesian families. In addition, in

many countries barriers to registration result from discrimination against certain groups. For

example, in the Dominican Republic many children of Haitian migrants are unable to register

themselves or their children with the Civil Register65. Indeed, in many countries, financial

and administrative barriers are coupled with laws and practices that limit and restrict late

registration or exclude non-nationals such as refugees, migrants and stateless persons from

registration, perpetuating and exacerbating their vulnerability.

12
International Commission of Jurists, 2012, p. 67.
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FORMALISM: Without the resources to retain private legal assistance, and with restricted

access to legal aid (see above), persons living in poverty are often forced to navigate the

judicial system alone. In doing so, they encounter a complex labyrinth of laws, traditions and

interactions with copious paperwork, the use of legal jargon, mainstream languages and

restrictive time limits, all of which can deter the poor from seeking justice under formal

systems and impede fair outcomes. 13These barriers are particularly damaging in areas of law

that frequently impact upon the most marginalized, including property disputes, welfare

claims, and immigration proceedings, and can often prevent commencement of claims to

enforce rights and seek remedies. Even when they do not bar engagement with the judicial

system altogether, cumbersome and complex procedural requirements may still obstruct

access to justice by increasing the financial and time costs, which people living in poverty

can ill afford. Persons living in poverty may be unfamiliar with, and often intimidated by,

regulations regarding dress codes, the hierarchy of the court system, confrontational design of

courtrooms, and traditions about when to sit, stand and address the judge. As a result, they are

in an unequal and disadvantaged position before they even walk into the courtroom.

Requirements that demand a high level of evidentiary proof before civil claims can be

instituted can have a disproportionate impact on the poor who are hampered by their lack of

financial resources, time, and understanding of the law and of legal processes. For instance,

after the 1996 Marcopper Mining Disaster in the Philippines, many poor farmers were not

compensated because they were unable to document that they had owned a particular number

of cattle or grazed them on the particular area of land in question. Collating evidence,

obtaining expert opinions, and preparing forms in the correct language can be an almost

impossible process without the assistance of a competent legal representative. Persons living

in poverty are even further disadvantaged when they are conducting proceedings or making a

claim against corporate entities or the State, whose power, reach and resources far outweighs
13
Combrinck and Wakefield, 2009, p. 2.
 P a g e | 20

theirs. This is particularly evident in criminal cases, where the State controls the collation and

production of evidence. The process of collecting exculpatory evidence or obtaining expert

testimony may prove prohibitively costly for the poorest and most vulnerable individuals and

is even more difficult for those forced to remain in pre-trial detention because of their

inability to make bail or pay the necessary bribes. In such cases, individuals have little hope

of having their charges fairly adjudicated at trial.

ILLITERACY AND DIFFERENCES:

in language and culture While many people find it difficult to understand legal or judicial

terminology, the complexities increase in multilingual and multiethnic societies. In such

14

countries, legal proceedings are often conducted in the official language, while many persons

living in poverty only speak local languages or dialects. Similarly, judicial systems that are

heavily reliant on paper forms and written submissions put illiterate persons in a

disadvantaged position. These problems often affect those among the poor (including women,

indigenous populations, ethnic minorities and migrants) who are excluded from education

services due to discrimination, and therefore less likely to have received adequate schooling

in the official or predominant language. While individuals facing a criminal charge have the

right to a free interpreter under international human rights law, in practice this service is often

limited, unavailable or reserved for those who speak a foreign language, rather than a

minority language or local dialect, and is rarely provided in civil cases. In Latin America, for

example, individuals from indigenous communities who do not speak the dominant languages

of Spanish and Portuguese are often excluded from judicial and adjudicatory mechanisms

because of the unavailability of translators. In Turkey, where 42 per cent of women above the

age of 15 are victims of domestic violence, Kurdish women face numerous obstacles in

making complaints or accessing domestic violence services because insufficient numbers of

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European Union Agency for Fundamental Rights, 2011b
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interpreters are available to enable them to communicate with authorities. People living in

poverty are also vulnerable to abuse or exploitation by interpreters without sufficient training,

whose cultural prejudices may inform their translation. Even when the predominant language

is spoken, cultural differences (alongside the imbalance of power) can impede

communication within the judicial system. In some cultural groups, different terminology

may be used for specific occasions or to speak to people in a different relationship, and time

and place may be described in different ways. Furthermore, inter-cultural communication

between indigenous groups or ethnic minorities and judicial officers can be impeded by

differences in perceptions of politeness; cultural taboos which prevent the giving of certain

evidence; and reliance on interrogatory methods. For example, research shows that Australian

indigenous persons under questioning in criminal trials often adopt a method of ‘gratuitous

concurrence’, where they answer ‘yes’ to questions, meaning only ‘yes, I hear you’. When

judicial processes do not adopt measures to facilitate cross-cultural communication and adapt

to cultural differences, this may contribute to higher rates of conviction of criminal charges,

undermining the right to a fair trial.

CONCLUSION:

Persons living in poverty face obstacles in each of the steps that they must take to seek

redress through the justice system. All these obstacles to access to justice result in the

perpetuation and entrenchment of poverty. They increase the vulnerability of people living in

poverty to abuse, violence, exploitation and crime, and therefore create a vicious circle and

increase the likelihood that poverty will be passed down through the generations, and become

endemic in certain communities, groups and areas. From a human rights perspective, the

prevalence of the obstacles described above is a source of major concern, and a serious

barrier to the enjoyment of several human rights, including the right to access to justice. They

also undermine the dignity of people living in poverty. These obstacles they face are linked
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not only to lack of financial resources or to the direct functioning of the legal system, but also

to wider social and structural issues, often related to entrenched discriminatory attitudes

against the poor. While several barriers described above affect everyone in society, they

uniformly have a disproportionate impact on the poorest. The mere existence of these barriers

constitutes a major threat to the principles of equality and non-discrimination, one of the

fundamental pillars of international human rights law. All these barriers de facto impede

access to justice by persons living in poverty, perpetuating a system where access to justice is

ensured only for the wealthier segments of the population. If this is not changed as a matter of

priority, existing levels of inequality in terms of power, resources and knowledge will be

reinforced or even exacerbated. Therefore, strong and targeted efforts must be made by

States, as well as civil society, to ensure that people living in poverty enjoy access to justice

on an equal basis with the rest of the population. While the most effective method for doing

so will vary across different contexts, it essential that access to justice interventions do not

merely focus on the ‘low-hanging fruit’ – people whose access to justice can easily be

improved by small improvements or adjustments to existing justice mechanisms. Instead,

interventions must be designed with the aim to improve access to justice specifically for the

poorest or most marginalised segments of society. It is clear from practice on the ground that

civil society, international organisations and NGOs can play an important role in this task.

Because the obstacles the poor face in accessing justice are diverse, these efforts must be

comprehensive and holistic, implemented within a long-term sustainable policy framework,

involving collaborations at all levels– central, state and local - as well as in partnership with

civil society organization and grass root movements. Overall, although in some contexts

progress has been made in improving access to justice for people living in poverty, long-term

success will require taking a wider view and tackling a range of structural, social, cultural and

economic obstacles that all too often make justice unattainable for people living in poverty.
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Ultimately, the aim must be to build justice systems that are within reach of the poor:

socially, geographically and financially.

BIBLOGRAPHY:

1. EXPANDING ACCESS TO JUSTICE TO REACH THE POOR AND THE

MARGINALIZED COMMUNITIES BY Ms. Komal Audichya

2. OLICY AND LEGAL REFORMS FOR THE POOR IN INDIA

3. ACCESS TO JUSTICE AND LEGAL NEEDS BY Louis Schetzer and Judith

Henderson
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