The problem of access to justice is deep and pervasive in India and has affected the ability of the legal system and judicial process to respond to injustices. The crisis of delays that has engulfed the Indian judicial process calls for responses at multiple levels of decision-making. A range of reforms — legal, judicial and institutional — needs to be initiated for dealing with delays and ensuring access to justice.
One such important reform is to expand and establish more permanent benches of High Courts in different parts of the country. Historical happenstance has caused the establishment of principal benches of High Courts in different cities in the country. While most States have the principal bench of the High Court located in the capital city, there are a number of States where the principal seat of the High Court is located in another city. Regardless of whether the principal bench of the High Court is in the State capital or not, the imperative of access to justice demands that we move towards establishing adequate benches of High Courts as and when the need arises. The following issues need to be carefully examined while we consider the policy aspects of establishing additional benches of High Courts
Democratic decentralisation
One of the most important lessons of governance in post-Independent India is the recognition that centralisation of power — legislative, executive or judicial — has huge problems in a federal polity. The passing of the 73rd and 74th amendment to the Constitution of India underscored the importance of democratic decentralisation and paved the way for the development of Panchayati Raj institutions. However, the justice delivery mechanisms continue to be centralised and the existing court systems are based on a hierarchical governance structure, which may not be able to effectively address the problems of injustices in the Indian society. The stress that the civil and criminal justice system is facing is also attributed to the lack of capacities of the appellate courts in dealing with disposal of cases. Establishing more benches of High Courts in more than one city in a State creates new opportunities for people to seek judicial remedies. In fact, the Law Commission of India in its 230th Report dated August 2009 entitled, “Reforms in the Judiciary – Some Suggestions,” has persuasively argued for the creation of new benches of High Courts. The report observed: “… It is also necessary that the work of the High Courts is decentralised, that is, more Benches are established in all States … It is also in the interest of the litigants. The Benches should be so established that a litigant is not required to travel long.”
Duties of lawyers
Lawyers need to promote access to justice. Access to justice is the fulcrum around which any effective legal system revolves. There is a real risk of Indian citizenry losing faith in the legal system and the judicial institutions if it is unable to get justice within a reasonable time frame and at reasonable expense.
The existing legal and institutional mechanisms for promoting access to justice are not adequate and lawyers need to own up to some of the responsibility in bringing this state of affairs to pass. While there is an increasing acknowledgment of the urgent need for establishing more High Court benches, the proposals to do so tend to get embroiled in a mix of unwarranted controversies and petty politics. Lawyers in the cities where High Courts are located object to the establishment of additional benches. This problem of vested interests was squarely addressed by the 230th Report of the Law Commission of India, which noted: “Sometimes, some advocates object to [the] creation of new benches and selection of new sites for construction of new buildings. But they raise objections in their personal, limited interest. Creation of new benches is certainly beneficial for the litigants and the lawyers and a beginning has to be made somewhere … We must always keep in mind that the existence of judges and advocates is because of the litigants and they are there to serve their cause only.” Lawyers being officers of the court have duties and obligations to society at large. Rather than take a myopic, parochial view of the matter, they should adopt a holistic viewpoint and appreciate the sheer indispensability of access to justice to the health of the very legal system which sustains them, while forming their views and perspectives on the matter.
Prohibitive costs
The Indian legal system is facing challenges at the level of justice delivery. A number of people who are aggrieved are not able to seek justice because of the prohibitive costs of litigation and the delays that come along with them. Establishing additional benches of High Courts will help in reducing the costs of litigation. It will help in doing this by making available to citizens a wider range of new lawyers who were hitherto not involved in the appellate litigation process receiving opportunities to pursue their legal practice. It is common knowledge that the government is the largest litigant in our legal system. Most of the time, if there is an adverse order for the government at the level of the subordinate judiciary, it inevitably goes on appeal to the High Court. This poses significant problems for High Courts where the principal bench is not located in the capital city of the State, where the seat of the government is located. A large number of officers need to regularly travel to appear before the principal bench of the High Court and be continuously involved in the litigation process. Not only does this have complications and lead to judicial delays but also has unappreciated ripple effects on the fulfilment of regular functions of government departments and agencies, which bring additional costs and delays in their wake. These problems can be addressed if we move towards establishing more benches of High Courts.
Legal education and legal profession
The Indian legal profession is facing a number of challenges. There is need for democratisation of the legal profession and this will not happen until we improve the quality of legal education. Legal education that is currently offered in Indian law schools needs to be improved by providing greater access and opportunities for young law students and budding lawyers to have greater exposure to High Court practice. There should be a conscious effort to provide opportunities for law students to the extent possible to regularly observe court practice, not only in lower courts, but also in the High Courts. This will not be possible if there are fewer High Courts in the country — only a limited few law schools and students who are located near the High Courts have access to it. Establishing additional benches will create new possibilities for lawyers to engage in practising law in those benches and this will have a direct consequence in improving the quality of the legal profession.
The way forward
There are a number of efforts currently being taken across the country for promoting access to justice. New proposals for establishing additional benches of High Courts are under consideration. One such proposal is that of establishing the Thiruvananthapuram Bench of the Kerala High Court, the principal seat of which is located in Ernakulam. This effort has been led by Shashi Tharoor, Member of Parliament from Thiruvananthapuram, and has received wide-ranging support. This proposal, too, however, has met with the now usual resistance from some quarters; and the Kerala High Court in October this year constituted a five-member judicial panel to examine the feasibility of establishing a Bench in Thiruvananthapuram.
It would not be out of place to briefly mention here the controversy regarding the establishment of the permanent bench of the Madras High Court in Madurai. After several years of efforts, a Permanent Bench of the Madras High Court was created in Madurai a decade ago. It is worth noting that the proposal was strongly opposed at that time and, after a range of initiatives and a few litigations in the Madras High Court, it became a reality.
It is rather unfortunate that a myopic vision and parochial considerations of vested interests have shaped many of the debates and discussions surrounding the need for establishing additional benches of High Courts in India which, viewed in the proper perspective, raises questions of existential importance for our legal system. This should change and the focus should be trained on what matter most, namely, promoting access to justice, reducing costs and delays, and improving efficiency of the government agencies in dealing with appellate litigation. Only then can we hope to instil faith among the Indian citizenry in the ability of the judicial process to deliver justice. This is an existential imperative for our legal system.
(Professor C. Raj Kumar, a Rhodes Scholar, is the Vice Chancellor of O.P. Jindal Global University. Email: VC@jgu.edu.in)
