जिला‑से‑हाई कोर्ट तक 150 किमी औसत दूरी: न्याय तक पहुँच में बाधा

Indian courts have a distance paradox. If your neighbour encroaches an inch of your land, you can sue him in the court down the road. If, however, the state locks you up without lawful authority, you have no option but to rush to your nearest high court. Your lawyers will advise you to invoke the HC’s writ jurisdiction under Article 226 and fight for your fundamental rights. But, this battleground is over 130 km away for most Indians.

The more serious your legal trouble, the more urgent your relief should be; yet the Indian legal system compels you to travel inordinate distances. This arrangement is absurd, especially when litigation involving the state accounts for a large part of the Indian judiciary’s caseload.

We dive deep into this problem and make three observations.

First, the distance that an ordinary Indian citizen has to cover to reach a constitutional court is massive. The average district sits 152 km from the high court. In large states, some districts may even be over 500 km from the HC. Saharanpur in western Uttar Pradesh, for example, sits about 656 km away from its assigned seat at Allahabad.

Second, high court delimitation is not done for litigant convenience — but rather for ease of administration. The governing formula for creating a new bench seems to rest heavier on the region’s share of the parent court’s caseload and not on how far anyone has to travel.

Third, this misery is a deliberate design choice. The current system is a relic of an analogue-era administration. Workarounds such as seamless remote filing or simply empowering the district court to grant urgent relief are feasible, cheap, and constitutionally viable.

The long march

Access-to-justice debates in India tend to picture a litigant standing outside a courthouse. For ordinary civil or criminal matters, this imagery is roughly accurate. A nationwide survey by DAKSH of 9,329 litigants across 305 locations observed that about 85 per cent of Indian litigants travel less than 50 km to reach their local courts. A similar study on a smaller sample showed that the average Indian’s journey to a district court was about 9 km. Our trial courts, despite their faults, are genuinely local institutions.

However, when your fundamental rights are in question, the Constitution promises you protection through the writ jurisdiction of the high courts and the Supreme Court. Typical examples of this would be the power to issue a writ of habeas corpus, to quash an illegal order, or to command a public authority to do its duty. These cases generally involve enforcing rights against state excesses and arbitrariness. But how far is the nearest high court of competent jurisdiction likely to be for the average Indian? Figure 1 below shows a mapping of every district centre and its competent high court seats, colour coded by the straight-line distance.

Only 18 per cent of Indian districts sit within 50 km of their competent high courts. Some 62 per cent are farther than 100 km, 27 per cent farther than 200 km, and one in every 10 districts is more than 300 km away. For millions of people, the court that guards their most basic freedoms is a full day’s travel, each way, from where they live. Figure 2 shows this distribution.

The numbers above measure only the straight-line distance between district centres and the seat of the high court. Add to this India’s poor road and rail infrastructure, complexities of terrain and topography, and imagine the plight of someone hailing from the farthest corners of a district — the predicament compounds disproportionately.

Postcode justice and misplaced jurisdiction

The Supreme Court itself has held, in Anita Kushwaha v Pushap Sudan (2016), that access to justice is a fundamental right under Articles 14 and 21. It went on to say that a key component of such access was that the forum was “reasonably accessible in terms of distance.” Socio-legal literature calls the resultant ease or difficulty in accessing courts and its manifestation in patterns of justice delivery as “postcode justice”. The under-served regions thus become “legal deserts” merely by reason of distance, with the most crucial kinds of reliefs rendered infeasible.

Despite burdensome distances, for some case types without statutory reliefs, you may be left with no option but to approach a high court. Take the case of medical termination of pregnancy; when a hospital declines a lawful abortion — one has to rush to the high court. Or as we wrote recently, when a regulator closes down your establishment or suspends your license, the high court may be your sole reprieve.

From a normative standpoint, we should ask why these reliefs should be exclusive domains of high courts and the Supreme Court. As legal scholar Alok Prasanna Kumar puts it, roughly 95 per cent of India’s judges sit in the district judiciary, yet we do not trust them with the power to give the most urgent and consequential reliefs. The forum closest to the person detained is, as a matter of deliberate design, the one without the power to free them.

Consider these analogies to further highlight the absurdity — a police station does not refer you to the state capital to file an FIR; likewise, a primary health centre does not tell a woman in labour to travel 400 km to a super-specialty hospital in the capital for delivery. We localise the essential and centralise only the specialised. The high courts and the Supreme Court are, and should be, the super-specialty institutions of the legal system: they exist to clarify the law, resolve conflicts between lower courts, and keep the law uniform across a jurisdiction. Delivering urgent, first-instance protection of a person’s liberty is not super-specialty medicine. It is the emergency room. We have committed a systemic design flaw by building just one emergency room per state in our capital cities.

Your convenience is not the court’s priority

Even when there are multiple high court benches within a state, the system’s non-litigant-centric perspective stands exposed. Take the example of the district Buldhana in Maharashtra. The Bombay High Court’s bench at Nagpur, which hears matters arising from the district, is 348-382 km away by road. Yet, if one looks close enough at Figure 1 above, one finds that Aurangabad, located just 145-171 km away has a high court bench too. Why isn’t Aurangabad the bench with competent jurisdiction? You’d also spot that Mahe is certainly closer to the High Court of Kerala in Kochi than it is to Madras. Why is the map drawn this way?

The most plausible explanation is that boundaries are drawn for administrative convenience and not with the litigant at the front and centre of the court’s decision matrix. Delimitation seems to be done by mapping together all districts that generate a critical mass of workload before a new bench is carved out. Or, as in the case of Mahe, merely by looking at territorial jurisdiction. The litigant’s convenience has no manifest appearance.

The Supreme Court partly justified this conspicuous absence in Federation of Bar Association in Karnataka v Union of India (2000). In response to the petitioners’ prayer for a new bench of the Karnataka High Court, the Supreme Court said that the difficulties lay in administrative limitations. The court said that the offices of the Chief Justice and the Advocate General were ‘singular’ offices, and that thus “the vivisection of the High Court into different benches at different regions would undoubtedly affect the efficacy of the functioning of the High Court.”

While the court was right in saying that “distance factor (to the seat of the High Court) may be a relevant consideration but not the sole consideration”, it remains unclear why the singularity of the Chief Justice’s office or the Advocate General’s office is a greater concern. Is it not possible to make arrangements for scheduled visits? Is it not possible to amend the law to have a deputy for each of these posts in the other courts? The justice system must ask itself who it really intends to serve.

Also read: Maharashtra FDA is judge, jury and executioner. Who watches the food safety watchdog?

Some solutions are already lying around

Territorial jurisdiction made sense in the age of paper. If a case file was a physical bundle that had to be carried to a courtroom, argued from a fixed seat, and stored in a record room, this system would have made sense. India’s jurisdictional map is the residue of that world.

These premises have dissolved today. Case files are digitised and e-filing portals allow for paperless submissions. Hearings already run over video conferencing in several courts. There is no longer any reason to tether and gatekeep the most consequential power as the exclusive domain of courts in capital cities. Here are a few workarounds within the system:

A designated judge in the district court. Empower one judge in each district to exercise high court-equivalent powers over a defined list of urgent writ reliefs, especially habeas corpus. Recalling Alok Prasanna Kumar’s proposal, the Constitution in Article 32(3) already allows Parliament to vest the writ power in “any other court”.

A better formula for high court delimitation. When new benches or high courts are planned, decide locations using travel distance and population as primary parameters. An area’s contribution to the caseload is a misleading measure of need, because filings reflect litigants’ perceived access to justice. Where access seems poor, people don’t file. Instead, benches should first be located to maximise litigants’ ease of access; caseload can then be managed by adjusting the number of judges at each bench.

A shared/designated high court judge for exclaves. For anomalies like Mahe and Yanam, designate a sitting judge of the nearest high court to also sit as a judge of the assigned high court.

Seamless remote filing and hearing from the nearest court. Even if the above suggestions may take time to be implemented owing to political economy constraints, allow litigants to file in, and appear from, the nearest subordinate court exactly as though standing in the high court through video conferencing. Progress in this direction has been made by some courts already. If done well, it could close the distance for everything short of a physical presence.

These designated judges will need no new buildings or benches and thus, costs can be kept minimal. All that is required is sufficient political will and acumen to rally together judicial stakeholders and re-engineer the system. We must not forget that the justice system exists to serve the people. There should be no greater priority before it.

Gokul Sunoj is a Legal Associate at TheProfesseer. He tweets @GokulSunoj. Views are personal.

(Edited by Aamaan Alam Khan)

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