Access to Justice

Access to Justice

 

The Access to Justice, Practice Notes, UNDP (2004) finds:

From the users perspective, the justice system is frequently weakened by:
 
1. Long delays; prohibitive costs of using the system; lack of available and affordable legal representation, that is reliable and has integrity; abuse of authority and powers, resulting in unlawful searches, seizures, detention and imprisonment; and weak enforcement of laws and implementation of orders and decrees. 

2. Severe limitations in existing remedies provided either by law or in practice. Most legal systems fail to provide remedies that are preventive, timely, non-discriminatory, adequate, just and deterrent. 

3. Gender bias and other barriers in the law and legal systems: inadequacies in existing laws effectively fail to protect women, children, poor and other disadvantaged people, including those with disabilities and low levels of literacy. 

4. Lack of de facto protection, especially for women, children, and men in prisons or centres of detention. 

5. Lack of adequate information about what is supposed to exist under the law, what prevails in practice, and limited popular knowledge of rights. 

6. Lack of adequate legal aid systems. 

7. Limited public participation in reform programmes. 

8. Excessive number of laws. 

9. Formalistic and expensive legal procedures (in criminal and civil litigation and in administrative board procedures). 

10. Avoidance of the legal system due to economic reasons, fear, or a sense of futility of purpose.

 

The case of Binayak Sen
(Sources: The Business Standard, The Lancet, The Hindu)

 

• Civil rights activist Binayak Sen completed two years in jail on May 14, 2009 as an undertrial on charges of assisting Naxals in Chhattisgarh, India.

• Sen and his wife, Ilina, have devoted their entire working lives to improve the health and welfare of the Adivasis, a marginalised and poverty-stricken tribal population. A troubling fallout of his incarceration is that much of his good work is slowly being eroded. His clinic, which provided essential health services, is on the verge of collapse.

• The Supreme Court on May 25, 2009 granted bail to Binayak Sen, vice-president of the People’s Union for Civil Liberties, who has been in detention since May 2007 under the Unlawful Activities (Prevention) Act for his alleged association with the naxalite movement in Chhattisgarh.

• Binayak Sen is the winner of the tenth annual Jonathan Mann Award for Global Health and Human Rights, and the first winner from India and South Asia. Sen is noted for extending health care to the poorest people, monitoring the health and nutrition status of the people of Chhattisgarh, and as an activist defending the human rights of tribal and other poor people. In May 2007, he was detained for allegedly violating the provisions of the Chattisgarh Special Public Security Act, 2005 (CSPSA) and the Unlawful Activities (Prevention) Act 1967.

• Binayak Sen-who had helped focus attention on these and other unlawful killings - was detained on 14 May 2007. This came after week-long accusations by the police about Sen absconding and of passing letters from Narayan Sanyal, a detained Naxalite leader whom he had been treating medically in the Raipur jail, to Pijush Guha, an alleged Naxalite under detention since 1 May. Sen, following his arrest, told the media that this charge had no basis since his meetings with prisoners were undertaken openly, with the permission of the Deputy Superintendent of Police and under the close supervision of jail authorities. Sen also pointed out that contrary to allegations of "absconding", he had been on a holiday (planned long in advance) and had returned as soon as he heard about the allegations.

 

The case of Irom Sharmila
(Source: Various newspaper reports)

 

• Irom Chanu Sharmila (1970 - present), also known as Sharmila Chanu, is an India woman activist of Meitei Manipuri heritage, known for her campaign against the controversial Armed Forces (Special Powers) Act, 1958, colloquially known as the AFSPA.

• Since November 2000, Sharmila has been on a fast-unto-death, demanding the removal of the Armed Forces (Special Powers) Act 1958 (AFSPA). AFSPA is a law that can come into force in any part of India declared as “disturbed”. The act allows anyone of any rank in the army or a paramilitary force under its operational command to shoot, arrest or search without warrant; and to kill on suspicion alone. Furthermore, there is little scope for judicial remedy. The whole of Sharmila’s state — Manipur — has continuously been under this law since 1980 (with minor exceptions in recent times).

• The Governor of Manipur has the full authority with regard to the declaration of ‘disturbed area’ in any part or whole of the state of Manipur, with, of course, the aid and advice of the council of ministers. The ‘disturbed area’ status of the entire area of the state of Manipur under the AFSPA was reaffirmed in the notification issued in the Manipur Gazette Extraordinary No 131 dated June 13 2000. As per the notification the declaration is to expire on June 1 2002.

• It was on 15th July 2004 that around dozen elderly and respectable Manipuri women marched to the area headquarters of the Assam Rifles and stripped naked and waved a banner which read as : "Indian Army Rape Us", "Indian Army Take Our Flesh".The naked march of these women electrified the masses and within no time the protests against the army reached new heights.

 

 

The murder of Lalit Mehta
(Source: Right to Food India)

• Lalit Kumar Mehta, member of Vikas Sahyog Kendra (Palamau District), was brutally killed on 14 May 2008 as he was returning from Daltonganj to Chhattarpur on a motorcycle

• Lalit (aged 36), an active member of the right to food campaign and Gram Swaraj Abhiyan, has been working in this area for more than 15 years on issues related to the right to food and the right to work. He was a very gentle person and his work was widely appreciated. However he was also fearless in exposing corruption and exploitation, and often came in the way of vested interests.

• At the time of this incident, Lalit was helping a team of volunteers from Delhi and elsewhere to conduct a social audit of NREGA works in Chainpur and Chhattarpur Blocks of Palamau District. Attempts had already been made to dissuade the team from conducting this investigation, particularly in Chainpur Block.

 

According to the India-World Report 2009 from Reporters without Border, http://www.rsf.org/article.php3?id_article=30988:

• India that claims the distinction of being the world’s largest democracy provides a legal framework that is largely favourable to press freedom. Indian journalists take pride in their freedom and will defend it robustly in street protests or before the courts. The Constitution is on their side and guarantees free expression in Article 19, but on the condition that it does not conflict with the “sovereignty and integrity of India”. However journalists’ safety is precarious in some states in which press freedom is under threat from politicians, religious groups and criminal gangs.

• Islamist attacks on Mumbai were shown live on Indian television. The courts reacted by banning channels from showing some images and statements by the gunmen and the government proposed guidelines for coverage of terror attacks. An anti-terrorist court in March imposed a blackout on the trial of an Islamist group for bombing a train in Mumbai.

• The justice system, under pressure from religious groups or corrupt officials, does sometimes abuse the use of charges and detentions against journalists. An editor and two assistants spent ten days in prison for publishing a book condemning violence against the Christian minority in Orissa state in the east. They were charged for violation of Articles 153-A and 295-A of the Indian criminal law by publishing “provocative literature that could upset communal peace and harmony”. An editor in Karnataka state, southern India, B. V. Seetaram, said he feared for his life after he was arrested when a libel suit was brought against him by supporters of the local authorities.

• In March, 2009 three editors who had recently been arrested by the police jointly condemned growing pressure from “fundamentalists”. “Before arresting anyone, the authorities should check that the law is applicable in the case” said Ravindra Kumar, editor of the daily The Statesman, based in Kolkata, who in February was charged with “offending religious sentiments”. Under pressure from a Muslim organisation, the newspaper was forced to apologise over an article condemning the erosion of freedom to criticise religions.

• Three journalists, including an editor, have been murdered since the start of 2008 in the north-eastern states by armed separatist groups or pro-government militia for speaking out against the chaotic situation in these regions. In Chhattisgarh state, central India, where security forces are fighting Maoist guerrillas, local reporters are regularly accused by police of being “Maoists” and by insurgents of being “traitors”.

• Security forces battling separatists and facing popular demonstrations in Kashmir sometimes crack down hard on media, who are accused of throwing oil on the flames. The press endured a “black month” in July 2008, when a cameraman was killed, 35 journalists were beaten by security forces, local television stations were censored and press distribution was hampered for several days because of a curfew. Police violence of this kind, chiefly by officers of the Central Reserve Police Force (CRPF), is rarely punished. Journalists in Kashmir do not enjoy the same legal protection as their colleagues in the rest of the country.

• Criminal gangs are however a threat to investigative journalists throughout the country. A reporter on the Hindustan Times in Bihar state in the north-east was shot dead in November while reporting on drug trafficking in the region.

• Foreign journalists are not always welcome in India. Some US, British, French and Swedish reporters have been denied visas because their names appeared on a blacklist. Two Swedish journalists had their visa applications turned down after putting out reports about social problems in India. Some foreign correspondents faced excessive delays when they applied for press visas in the run-up to the 2009 elections.




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