The question as to whether the access to justice is a constitutional right, a statutory right or a common law right was debated in different jurisdiction in different manner. Whereas the Supreme Court of India in Tamilnad Mercantile Bank Shareholders Welfare Assn. (2) v. S.C. Sekar reported in (2009) 2 SCC 784 has held that access to justice is a human right which in certain situations, may also be considered to be a fundamental right, the question with regard to the constitutional aspect of the matter vis-à-vis the power of judicial review had been considered in many cases.
In Arunima Baruah v. Union of India, reported in (2007) 6 SCC 120, it was held that"On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. A person who has a grievance against a State, a forum must be provided for redressal thereof. (See Hatton vs United Kingdom. For reference see also Zee Telefilms Ltd. v. Union of India.) The evolution of the law in this behalf although sporadic but on a positive note. The judiciary acts as a defender of individual liberties wherever a person raises a concern with regard to violation or protection of his right, the Court shall step in. Even an accused, be terrorist or otherwise has the right to approach the court of law. In R v Secretary of State for the Home Department, ex parte Leech reported in [1994] Q.B. 198, Steyn LJ said ''It is a principle of our law that every citizen has a right of unimpeded access to a court''. Further in Raymond v Honey [1983] 1 AC 1, Lord Wilberforce at described the right of access to the courts as a ''constitutional right''. Laws, J in R v The Lord Chancellor, ex p Witham, [1997] 2 All ER 779 after discussing various decisions including Ex parte Leech (supra) equated the right to access to justice to the right of speech and expression in the following words: ''I cannot think that the right of access to justice is in some way a lesser right than that of free expression; the circumstances in which free speech might justifiably be curtailed in my view run wider than any in which the citizen might properly be prevented by the State from seeking redress from the Queen's courts. Indeed, the right to a fair trial, which of necessity imports the right of access to the court, is as near to an absolute right as any which I can envisage''. Laws, J referred to the proposition that: ''The executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right''. It was furthermore held that ''access of right to a court is a constitutional right'', which can only be denied by a specific legislation ''turning people away from the court door''. The head note of this decision uses this term common law constitutional right. In an article Dr. Cyrus Dass, a member of Faculty of Law University of Malaya published in ''World of All Human Rights'' Soli J. Sorabji a Festschrift, opined that the same may safely be taken as an accurate compendious description of the right. From: SANJAY VASANT JADHAV Lecturer in department of law University of Mumbai Date: 15.6.2011. Mobile number 9892505106 Search for old postings at: http://www.mail-archive.com/[email protected]/ To unsubscribe send a message to [email protected] with the subject unsubscribe. To change your subscription to digest mode or make any other changes, please visit the list home page at http://accessindia.org.in/mailman/listinfo/accessindia_accessindia.org.in
