Abstract
Regrettably, access jurisprudence is the Cinderella of the Indian Justice System. Ubi jus, ibi remedium is basic to the credibility in the law. But when a person goes to court in search of relief and has a case to substantiate the wrong done to him, prompt remedy must issue. Unfortunately, our Procedural Codes, Civil and Criminal, are beset with baffling steps that it is more accurate to describe our system as a government of lawyers and not a government of laws.1
A legal and regulatory framework which protects property and contractual rights, ensures a fair and quick settlement of disputes and establishes a fair and stable labor/management relationship is a fundamental element in the stability and flexibility needed for the investment environment.2
As ever, I am indebted to my research assistant Sonali Akeyratne for her assistance with this chapter.
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Notes
Barry Metzger ‘Legal services to the poor and national development objectives’, in Committee on Legal Services to the Poor in Developing Countries, Legal Aid and World Poverty (New York: International Legal Centre, 1974) p9.
P. von Mehren and T. Sawers, ‘Revitalizing the law and development movement: a case study of title in Thailand’ Harvard Int.L.J. Vol. 33 (1992) p67.
The distinction is widely recognised, if not exactly in these terms. See, for example, M. Cappelletti, J. Gordley & E. Johnson, Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies, (Milan: 1975) pp.85, 109; M. Galanter, Law and Society in Modern India (New Delhi: Oxford University Press, 1989) p287.
H. Y. Yeo, ‘Assessing the state of civil legal aid in Singapore’ International and Comparative Law Quarterly Vol.41 (1992) p875.
I. Jaising, ‘India’s Legal Services Authorities Act 1987’ in Legal Action Group, Shaping the Future. New Directions for Legal Services. Seminar 1 (unpublished, 1994); Rajeev Dhavan, ‘Law as Struggle: Notes on Public Interest Law in India’ (Madison, Wisconsin: Institute for Legal Studies, Working Paper, 1993) pp37–9.
A. Harding, ‘Public interest groups, public interest law and development in Malaysia’ Third World Legal Studies Vol. 231 (1992) pp232–3.
C. Dias, ‘Obstacles to using law as a resource for the poor: the recapturing of law by the poor’ in International Commission of Jurists, op. cit., p40. See also C. Dias, ‘Problems and challenges faced by legal resource groups in south Asian region’ Journal of Indian Law Institute Vol. 30 (1988) p63.
As well as references cited elsewhere in this chapter see D. Harland, ‘Collective access to justice — some perspectives from Asia and the Pacific’ in Chulalongkorn Law Review Vol. 6 (1989–1990) p126.
Substantively there must be a violation of a fundamental right, since public interest litigation (PIL) is founded in the constitution. There is a great deal of writing about Indian PIL. for example G. Peiris, ‘Public interest litigation in the Indian subcontinent: current dimensions’ in International and Comparative Law Quarterly Vol. 40 (1991) p66
C.D. Cunningham, ‘Public interest litigation in Indian Supreme Courts: a study in the light of American experience’ in Journal of Indian Law Institite Vol. 29 (1987) p494.
For example, R. Abel, ‘The contradictions of informal justice’ in R. Abel (ed.), The Politics of Informal Justice (New York: 1982); H. Genn, ‘Tribunals and informal justice’ Modern Law Review Vol. 56 (1993) p393.
U. Baxi, ‘From Takrar to Karar: the lok adalat at Rangpur — a preliminary study’ J. Const’l. & Parl. Studies Vol. 10 (1976) p52.
Mr. Justice A.M. Ahmadi, ‘Arbitration and alternative forms of justice’, Indo-British Legal Forum. Vol. 2 (London: 1992) p84.
Chen Kah Leng, ‘Country Report for Malaysia’, Symposium on Legal Issues in Debt Recovery, Credit and Security (Manila: unpublished, 1993) pp31–2; Homayoon Arfazadeh, ‘New perspectives in South East Asia and delocalised arbitration in Kuala Lumpur’ Journal of International Arbitration Vol. 8 (1991) p102.
Ho Peng Kee, ‘Small claims process: the Singapore experience’ Civil Justice Quarterly Vol. 7 (1988) p329.
J. Canaga Retna, “The legal system of Sri Lanka”, in K. Redden (ed.), Modern Legal Systems, Buffalo, 1985, v.9, pp.770–771.
s.31; V. Shroff, ‘The Indian Debt Recovery Act’ Journal of International Banking Law Vol. 1 (1995) p29.
“There are parts of India in which such a power would be abused by Native mortgagees…”: W. Stokes, The Anglo-Indian Codes, Vol. 1 (Oxford: 1887) p733.
‘Access to justice: social and historical context’ in M. Cappelletti & J. Weisner (eds), Access to Justice Vol. 2 (Milan: 1978) pp3
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Cranston, R., de Mendonca, M.L.V.P. (1997). Access to justice in South and South-east Asia. In: Faundez, J. (eds) Good Government and Law. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-349-25229-9_10
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