International declarations and institutions alone cannot sustain the international legal order unless they rest on the twin foundations of equal justice and equal law, Chief Justice of India Surya Kant has said.
Addressing the 14th St Petersburg International Legal Forum in Russia, on “Equal Justice, Equal Law: Access as the Measure of International Law’s Humanity” on Wednesday, CJI Kant said international human rights instruments embodied lofty ideals, their implementation had not always been equitable.
“Equal justice and equal law are not ceremonial phrases. They are the conditions under which a legal order may credibly call itself law at all," he said.
He traced the concept of equality to Kautilya’s ‘Arthashastra’ which declared that “A King who does not hold himself subject to dharma, to law, ceases to be a King, whether morally or actually.”
The CJI said: “The principle of equality found its most ambitious modern expression in the Charter of the United Nations, which proclaimed, in its very first Article, about the ‘Sovereign Equality of Nations Large and Small’.”
He described fundamental principles of international law such as: jus cogens norms (norms which govern customary international law), obligations erga omnes (obligations owed by a State to the international community as a whole), good faith, non-intervention, pacta sunt servanda (treaties and agreements in force must be performed in good faith) as the pivotal guardrails against international discretion.
“To my mind, the above-cited principles are too fundamental to be traded away, and if vitiated, would injure and impair the legal conscience of humanity as a whole,” Justice Kant said.
“And yet here we are, gathered at a forum of the world’s finest legal minds, still asking whether international law is a privilege of the few or a law among equals. The fact that the question must still be posed is, in my opinion, an indictment in itself,” he said.
CJI Kant pointed out that developing nations in the Global East and South often faced disproportionate international scrutiny and pressure while wealthier nations were not always held to the same standards.
“Numerous nations within the Global East and South are still in the process of constructing their institutions, addressing the repercussions of colonialism, and tackling poverty on a scale that the original drafters of international covenants could not have envisioned. These countries frequently endure scrutiny and pressure that are not proportionally applied to wealthier and more influential States, whose own compliance records are not necessarily irreproachable," the CJI said.
Describing equal access to law as the first step towards achieving equality, Justice Kant said, adding that access to law cannot remain a procedural formality and that it must result in the conferment of actual rights.
“My answer, which I draw from my experience presiding over the world’s largest and most complex judicial systems, is that the first step to equality is providing equal access to the law,” the CJI said.
Indian courts have progressively expanded access to justice by relaxing rules of legal standing, strengthening free legal aid, entertaining letters as public interest petitions and treating procedure as a servant of justice, not its master, he stated.
“We have learned that the most significant obstacle to equality is not the lack of legal or statutory support, but rather it is manifested on account of geographical, social, and economic disparities. Consequently, the Indian Constitutional Courts have interpreted and provided a broad and expansive interpretation of constitutional guarantees in order to eliminate all such barriers," he said.
Earlier, the Supreme Courts of India and Russia signed an MoU on best practices in technology and justice administration in Moscow on Tuesday.
A Joint Working Group will work on developing strategies and mechanisms for sustained technological collaboration and deeper institutional engagement between the two judiciaries.
