INTRODUCTION
It is self-evident that migrant workers have rights, and that human rights apply to migrants as well. It is also a reality that there is a significant gap between the legal rights that migrants worker shave and their industrial application. In such a situation, the right to access to justice is crucial. The more insecure and challenging a migrant’s situation is, the more important it is for such workers to have convenient access to assert his rights.
The efficient protection of human rights begins with access to justice. It’s also crucial for dealing with delivering remedies, impunity, and preserving the rule of law. The right to access justice is recognised in international and domestic human rights documents, as well as national constitutions and legislation around the world, and it extends to everyone, including migrants workers, without discrimination.
The focus of this research is to give a broad perspective on the migrant workers’ right to access to justice, regardless of their legal status, in light of Indian jurisprudence and relevant international conventions.
STATUS QUO
Individuals who have access to and can effectively use existing legal or quasi-judicial processes to preserve their rights and receive restitution in the event of infringement are said to have “access to justice”. Access customary frameworks, alternative dispute mechanism, and quasi-judicial proceedings are examples of this. Furthermore, the Latin maxim Ubi jus ibi remedium implies “where there is a right, there is a remedy.” To put it another way, if someone does something wrong to an aggrieved person, the latter has the right to seek an adequate remedy to reverse the harm done to him by the former, i.e., he can seek access to justice.
The concept of “access to justice,” which is envisioned in the constitutions of practically all democratic governments around the world, may be traced back to Magna Carta’s Art. 39 which says that:
“No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”
It is an inalienable human right based on the common law premise that access to the courts can never be refused unless expressly stated in a statute. Steyn LJ was of the opinion in R v. Secretary of State for the Home Department:
“Access to justice is a basic right which could not be denied or diluted by any kind of interference or hindrance”
A person who has been injured cannot be left without recourse, and access to justice is a human right, and in some cases, a fundamental right. The emergence of a new set of rights under the umbrella of human rights and basic rights can be considered as a chance to impose a responsibility on the legislative, administration, and judiciary to fulfil their tasks responsibly in order to preserve migrant workers’ rights. A viable relief within the context of the judicial system, which professes to guarantee legal rights through efficient access to justice, is the best way to ensure such protection.
Article 14 of Indian Constitution
In order to ensure equality in Indian society, the founding fathers of the Indian Constitution included the Right to Equality in the Indian Constitution. Because the effective, fair, and impartial operation of a society is dependent on the concept of equality, it is appropriate to refer to equality as the Mother of Justice. Justice is Orphaned when equality vanishes from the confines of the legal system. As a result, “access to justice” is regarded as an essential component of fundamental rights.
Article 14 of the Indian Constitution, which guarantees equality before the law and equal protection under the law, includes access to justice as a core component. Any government or individual cannot deny access to justice; it can only be managed by a court of law within lawful limitations. If an individual is subjected to arbitrary restrictions while accessing the judicial system, the equality clause loses its true value, as protection under article 14 is not limited to the wealthy, but also includes bakers, butchers, and candlestick makers.
Article 21 of Indian Constitution
Article 21 provides that:
“No person shall be deprived of his life and personal liberty except according to procedure established by law.”
For the purposes of this article, “life” does not just refer to the presence of mere existence. Since the Maneka Gandhi case, the judiciary has broadened the scope of Article 21 by progressive court decisions. Justice Bhagwati stated in Francis Coralie that the right to life encompasses the right to live with human dignity and the fundamental necessities of life.
Discussing the broader interpretation of article 21 in the case of Anita Kushwaha v. Pushap Sadan, the court observed:
“There is no legal or other basis for arguing that denial of ‘access to justice’ will not damage the quality of human life in such a way as to remove access to justice out of the ambit of the right to life protected under article 21 if ‘life’ encompasses not just life in the material sense but a set of rights that makes life worth living.”
In the case of Brij Mohan Lal v. UOI and Ors., it was established that “Article 21 of the Constitution of India takes in its sweep the right to swift and fair trial.” To put it another way, it is the government’s constitutional duty to provide the migrant workers with such judicial machinery and means of access to justice that they can obtain a speedy, fair, and inexpensive trial.”
As a result, it is reasonable to conclude that a migrant worker’s access to justice is a fundamental right protected by article 21. Infringement of this right could undermine public trust in the legal system. As a consequence, migrant workers may seek for “shortcuts and other forums” where they believe their complaints will be addressed more quickly. In the long run, this may erode public trust in the court and judiciary, posing a challenge to the rule of law.
Principles of Natural Justice
Natural justice explains what is good and what is wrong and expresses the close relationship between the common law and moral standards. The purpose principles of natural justice are to achieve justice, or to put it another way, to prevent avoid injustice. The right to a free, impartial, and free trial is enshrined in the principle of natural justice. If the purpose of justice is to achieve justice, and the spirit of justice is to achieve fairness, prepare a proceeding on each side and present its evidence to the Court fully, freely, and equitably. You need to give them an equal opportunity to do so.
Access to justice is hampered in a variety of ways. When looking at migrant worker instances, it’s important to remember that the obstacles they encounter are the same whether they’re documented or undocumented, low-skilled or high-skilled, man or woman. Migrant workers’ access to justice is frequently problematic, especially for those without a regular status, due to both institutional and situational concerns. Discriminatory or insufficient social policies (for example, in the fields of health, housing, education, and social security), laws, or judgements may impede migrant workers from seeking recourse when their rights are violated. Poor management, economic insecurity, a lack of legal expertise, and other factors can all obstruct access to justice.
To add insult to injury, the COVID-19 problem has highlighted migrant workers’ fragile and miserable situation. Several migrant workers lost their source of income when a statewide lockdown was imposed last year, which is considered an important aspect of the right to life. All migrant workers, including daily wage employees, are obliged to be registered under the Migrant Labour Act, however they are unable to comply due to a lack of information. In addition, there are no specific government figures on inter-state migrants in the country. They are unable to return to their hometown due to a lack of cash and the closure of the inter-state border, leaving them in a state of afflux and without a place to dwell, resulting in denial of accommodation, a violation of article 21.
Proposal and Suggestions
In the case of Anita Kushwaha v. Pushap Sadan, the court outlined four fundamental aspects that are regarded to be essential parts of access to justice. These are the following:
1. The government must create a functioning judicial
2. The offered mechanism must be suitably accessible;
3. The adjudication process must be quick; and
4. The adjudicatory procedure must be accessible to the litigant at a reasonable
In light of this these recommendations, following suggestions could be utilized in order to provide access to justice to migrant workers:
- Part of judicial planning and preparation should include developing a strategy for prioritising key cases while yet protecting defendants’ rights. Instances involving underage labour migrants, crimes against migrant workers, non-payment of wages, and cases where the statute of limitations may apply
- “Justice delayed is justice denied,” as the saying goes. The entire legal system is moving at a snail’s pace as a result of COVID-19’s unusual circumstance. They’re dealing with the most important cases. It is entirely up to the judges’ judgement as to what they regard to be an “important” or “urgent” matter. It’s difficult to say if they’ll see gender-based issues or issues connected to migrant worker rights as “urgent”
- Prioritize, streamline, and simplify the legal Create a cross-border framework for resolving cross-border claims.
- Make the role of the first Person of Contact in ministries and departments, and strengthen their capacity to deal with migrants: (1) If the first Person of Contact is unable or unwilling to register a case, a higher authority must be available to register complaints (2) If the first Person of Contact refuses to accept written complaints, audio/video evidence must be acceptable and allowed for case registration, documentation, and evidence.
- Provide paralegal, pro bono, and free legal assistance to Low-income and domestic employees pay lower legal expenses and processing and registration fees. Fees for typesetting and stamping should be regulated for low-wage workers.
Conclusions
For migrants as well as everyone else, having effective access to justice is a must for good human rights protection. Combating impunity and fostering social solidarity based on actual and seeming fairness are equally crucial. In a nutshell, it is a necessary prerequisite for the rule of law to be respected. If social connections, including employment and housing, are to be founded on respect for those rights, the potential of a claim being made by a migrant or any individual whose rights are infringed must exist. To ensure that migrants have access to justice, independent, safe, effective, and accessible methods should be implemented. By definition, accessibility should be nondiscriminatory and result in a fair outcome.
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