PRABHAKAR KULKARNI | 17 AUGUST, 2019
The Constitutional Provision for Justice at Your Doorstep
#TCHasRights - The right to constitutional remedy is guaranteed to all
One of the three major aspects of the Constitution of India is justice – social, economic and political. For the three constituents of justice to be easily available to the people of India, structural changes meant to improve both the access and availability of justice need to be made, instead of relying on the system laid down by the British.
While division benches of the courts were established in states after the British legacy, indicating due changes for the decentralisation of the justice administration, there are still more in the making, and various states still need division benches in view of litigants’ expectation for speedy and affordable justice.
Although the right to justice and to constitutional remedy is guaranteed in the Constitution, and ‘justice at your doorstep’ is periodically proclaimed on political and judicial platforms, when justice will be available at everyone’s doorstep is the vital question.
It is possible only when the High Courts are established at regional and district centres, and for this the decentralisation of justice administration is necessary. It is still pending after long years, even though it is purely in the interest of people located throughout our large country and in varied locations across the states.
But who should take the lead and whose prerogative is it to act accordingly and establish courts as per regional requirements? The Constitution clearly states in Article 39A that ‘the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall in particular provide free legal aid by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”
This constitutional provision seems to be taken note of only in the case of free legal aid, for which some provision is being made.
But all the institutions of State must equally act ‘to secure operation of the legal system to promote justice on the basis of equal opportunity’ – this means establishing a system not only for those who are located in and around the High Courts and district courts.
If the Supreme Court is located in the national capital and the High Courts only in the state capitals, it amounts to penalising those who do not live in these cities, making it harder for them to access timely and affordable judicial remedy.
So the division benches of the courts must be relocated to regional and district places, or additional courts must be made here, for the convenience of litigants residing in these areas. For this, the state government should take the lead and approach the Union government, which will ultimately move matters and decide the formation of the division benches in the respective states, and then get the required concurrence of the respective High Courts and Supreme Court.
This process seems to have been followed in the past. In the case of the High Court’s Nagpur bench in Maharashtra the matter was moved by the then state government after the relevant resolution was passed in the state Assembly.
In the case of the Karnataka High Court’s division benches in Dharwad and Gulbarga, the same process was followed after a lawyers’ agitation, and the matter was moved by the state government which approached the then Union government.
Then law minister Veerappa Moily took up the issue and a division bench was established, with the government’s decision taken first and the concurrence of the Supreme Court sought afterwards.
If the state and Union governments take the lead in the matter, the concurrence of the High Courts and Supreme Court will follow. This is the constitutional scheme of responsibility.
Lawyers in southern Maharashtra have been agitating for a division bench of the Bombay High Court to be set up in Kolhapur for the last 25 years. Recently the High Court responded in a positive manner, but it is for the state and Union governments to go ahead and establish the division bench.
Other state governments and the Union government should also respond to the demand for division benches elsewhere in the country, so that every citizen in India can get justice at their doorstep, and need not rush to centralised courts to appeal the decisions of the district courts.
Prabhakar Kulkarni is a senior journalist.