Bread for the Poor: Access to Justice and the Rights of the Needy in India

Abstract

India is rightly acclaimed for achieving a flourishing constitutional order, presided over by an inventive and activist judiciary, aided by a proficient bar, supported by the state and cherished by the public. At the same time, the courts, and tribunals where ordinary Indians might go for remedy and protection, are beset with massive problems of delay, cost, and ineffectiveness. Potential users avoid the courts; in spite of a longstanding reputation for litigiousness, existing evidence suggests that Indians avail themselves of the courts at a low rate, and the rate appears to be falling. Still, the courts remain gridlocked. There is wide agreement that access to justice in India requires reforms that would enable ordinary people to invoke the remedies and protections of the law. In this study we focus on an innovative forum, introduced just twenty years ago, which has enjoyed substantial governmental and judicial support and is endorsed and promoted, indeed given pride of place by influential elites, as a promising avenue of access to justice. This forum is the Lok Adalat, literally people's court, and as the name suggests it is promoted as having a different source and character than the courts of the state. In fact, the Lok Adalat is a creature of the state, but because of the pretension that it is not, it deserves examination under the rubric of an alternative, non-state justice system. We suspect that a number of the inhabitants of that category bear a similar ambivalent relationship to the state.

This Article will proceed in the following manner: Part I recounts the post-Independence movement to establish village-based courts as a key method of enlarging public access to justice. After discussing the setbacks this movement encountered, we contrast the top-down public interest litigation approach that emerged in the wake of the Emergency period (1975-1977). In Part II we focus on how, beginning in the 1980s, judges and politicians returned to the captivating idea of settling disputes in an indigenous, traditional manner at the grassroots level. During this time, the concept of the Lok Adalat started gaining significant momentum, and we discuss the reasons why so many supported expanding this alternative dispute institution throughout India. In Part III we present findings from our preliminary observations of several different types of Lok Adalats. We conclude that the claim that this forum offers participants speedy, fair, and deliberative justice needs serious reconsideration.

JEL Classification: I30, K33