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First South Asian Regional Judicial ColloquiumonAccess to JusticeNew Delhi1 3 November 2002

Access to Justice and Judicial Accountability

Inaugural SpeechbyHonble Justice B.N. Kirpal

Chief Justice of India

Access to Justice and Judicial Accountability


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Inaugural SpeechHonble Justice B.N. Kirpal

Chief Justice of India

(Greetings to assembled dignitaries)

It gives me immense pleasure to deliver this lecture on "Access to Justice and Judicial Accountability".The topic is both current and appropriate under the circumstances of this Colloquium. I hope tobe able to adequately enlighten this eminent gathering with my thoughts on the prevailingsituation with respect to the Indian judiciary and its future. The issues that I raise will, I trust, berelevant to all countries in the SAARC region - a region inhabited by varied people, who share acommon bond, not only geographically, but also culturally and politically.

The Indian judiciary bears a tremendous responsibility. It is one of the three organs ofgovernment, and has to tackle problems of such magnitude and complexity as are never seen in

any other country in the world. But that is not all. The unique position that the judiciary possessestoday brings with it a measure of responsibility that has to be handled with care and foresight.The travails of politics and the weaknesses associated with upholding such a large democraticfirmament has led, over the last few decades, to a renewed trust in the judiciary, as opposed to thelegislative and executive wings. Justice is seen as the last resort, and on most occasions, with justcause. The lack of effective governance today is staggering - in this context, the judiciary is expectedto sustain a higher level of moral rigidity and make sure that the failures of the legislature and theadministration do not affect the progress of this great nation.

We are on the threshold of, perhaps, the most significant period in India's fifty-five year history.Change has become more rapid and continuous than ever before, and more is expected by the

Indian people than ever before. The policy of liberalization that was initiated in the early part of thelast decade has had a lasting impact on our economy. Whether we like it or not, the phenomenon ofglobalization has seen to it that the international community, irrespective of their political andreligious compulsions, has recognized the colossal potential that Indians have amplydemonstrated. The technological revolution has placed India firmly on the global economic map, andthere is a palpable and increasing demand today for Indian products and services in many fields allover the world. In addition, the lessons we have learned, sometimes painfully and even dangerously,about what it takes to be a nation with such a great extent of diversity and variance, are still beingtested for their strength. India, in short, has come to the fore, politically, economically, andscientifically. This sort of rapid progress calls for a paradigm shift in the legal system. The law cannotcontinue to sit back and watch this progress and then attempt to adapt to it. It must guide the change.It must see to it that future possibilities are accommodated, without restricting the genius of the Indian

people. All this places an enormous responsibility on governance.

The Indian judiciary has taken some vital and, in hindsight, tremendously important strides in chalkingout new methods to facilitate justice - a lot of which revolved around the phenomenon variouslyreferred to as public interest litigation and social action litigation, the tendency to accommodate allkinds of claims at the highest levels of the judiciary to facilitate the highest levels of justice, and theexpansion and examination of the rights of the Indian citizen. These combined events have lent to thejudiciary a sort of unique position in Indian governance, and in the eyes of the Indian people. The


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judiciary has to support these expectations, while constantly innovating with respect to themethods of justice.

Foremost among governance objectives, in this context, is the access to justice. There are a billionpeople in this country, and the majority does not know what a court is, or what the concept of

justice is, or even, in many cases, what right and wrong is. Our Constitution proudly declares thatevery Indian citizen contributed to its making - the reality is not so, although there were goodreasons for taking such a stand. However, it is absolutely necessary to educate every citizen about hisrights, and make it possible for him/her to attain justice. There are many ways to do this, chief of

which is through education. The Supreme Court discovered, in the early 1980s, through the valuableinsight of many brilliant members of the Court, that the fairness of judicial procedure, which hadbeen established centuries ago, was being severely tested by this lack of access. And therein was bornthe phenomenon of public interest litigation, dispelling the strict doctrine of locus standi.

Although public interest litigation has had its own share of criticism, mainly concerning its misuse, ithas proved a vital tool in the battle to ensure access to justice. Many important constitutionalmatters have arisen for the Court's consideration because of this phenomenon, and have ledsuccessfully to new chapters in the jurisprudence of rights and constitutional law. I should point out,

at this stage, that the subject of this lecture is not just the access to justice, which would involve anexhaustive discussion of public interest litigation, but also the concept of judicial accountability. What Ipropose to do is to deal with several aspects of judicial accountability, while keeping in mind the uniquepowers and responsibilities of the judiciary to ensure this access to justice.

While placing the judiciary on a higher pedestal, certain other admissions are also in order. Themembers of the judiciary are also Indian citizens who come from the same aggregate as those inthe legislature and the administration, and therefore, there are also instances where corruption andincompetence have also pervaded the judicial establishment - that cannot be denied. However,

what I seek to dwell on here is both the comparatively lesser extent of this pervasion, and thediffering moral demands on these individuals. The judge, simply on the basis of the sacrednature of the profession, is called upon to perform his/her duties on the highest moral grounds,

with the utmost objective and apolitical mind, and no dependence on any particular ideologywhatsoever. In addition, due to the elaborate nature of the safety measures that have been put in placeover time and are being continually monitored and augmented, the process of judicial selectionitself ensures that corruption and incompetence are weeded out to a very large extent, if not completely,for any process of selection could be compromised if there are enough players who participateactively to its detriment.

The judiciary is not elected by the people of India. That seems to lead to the inference that thejudiciary is not accountable to anyone as well. This inference seems to be further strengthened bythe results of the three cases dwelling on judicial appointments. The result of the three decisionsof the Supreme Court, plainly, is that the process of judicial appointment is no longer political, as it

continues to be in progressive democracies such as the United States. Instead, to a substantial extent,the judiciary appoints itself, with the active participation of the administration, including the Presidentof India, the Government of India, the Prime Minister of India, and the Chief Ministers andGovernments of the States. However, this inference is mistaken, as I will elaborately point outhere. The choice of appointment by the judicial establishment is not, in itself, a regressive step. Itis a choice, a felt choice, and a considered choice - a choice occasioned by the realization that thecornerstone of democracy lies in the independence of the judiciary. Each choice has its ownrepercussions. For example, consider a situation where a Justice of the Supreme Court of theUnited States is appointed by the President and confirmed by a wafer-thin margin in the Senate of the


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United States, as has indeed happened in the past. It is quite possible that this person continues to beviewed with apprehension, for whatever reasons caused his slender appointment, every time heparticipates in a verdict. Is that a desirable position? I think not. Justice must always be done, andmust be seen-to be done. For this tenet to be effectively discharged, it is absolutely essential that theposition of a Judge not be, in any way, even viewed as compromised. At the same time, I will alsoconcede that appointments effected by the judiciary may also have repercussions that are not

entirely desirable. For example, it is possible that a particular colloquium of judges is saddled with theresponsibility of appointing judges for the next decade or more. This may not be welcome, eitherbecause the Indian system depends on an effectual augmentation to the judicial system, facilitated by thequick succession of judges, caused in turn by compulsory retirement at a particular age - therefore,some quarters may justifiably object to either choosing judges who would continue to occupytheir positions for long periods, or placing their appointments in the hands of judges who may notoccupy the position for such long periods themselves. Nevertheless, the most significant point in thisdebate is that this choice has been made, and made after considerable thought, and after differingparties have been given an opportunity to present their arguments. It is for us to now live with thischoice, not in an inevitable sense, but in the real sense of the word "live", i.e., to see that ourdemocracy grows with this choice - we have to see to it that this choice is further facilitated by theobstacles that may present themselves through new and unprecedented situations, and provide for

robust safeguards that might minimize the fears that come with this choice.

I now move to another issue that has been the point of controversy - that surrounding thesubordinate judiciary in India. The prevailing reality is that most Judges in the High Courts and theSupreme Court of India, are, even today, chosen from the Bar - it is only a smaller percentage who areselected from the Judicial Services. When one speaks of the achievements and accomplishments of theIndian judiciary, one inevitably means the higher judiciary, comprising the High Courts and theSupreme Court of India. The reason for this is not entirely the composition, unlike popular belief,but of the differing degrees of power that the Courts possess. Articles 32, 136, and 143 give to theSupreme Court absolute and supreme judicial powers - any matter in any tribunal or court anywhere inthe land can be chosen by the Supreme Court for its own perusal; appeals by special leave facilitate

many vital matters that demand the highest levels of justice; the writ Articles give the Court the power tojudicially review any decision or policy. Under Article 226, the High Courts have similar powers,and in fact, even wider powers, with respect to the State. The lower courts, although endowed

with powers sufficient to carry out their duties, do not have these all-encompassing powers. That is thereason that they do not make news everyday, although it is their work that facilitates substantive justice- the higher courts merely oversee and confirm or set aside their verdicts. The choice of selectionthrough examinations is impeccable, and yields individuals of expertise and industry. In addition, thehigher courts continually supervise the activities of the lower courts. There are many instances

where, for example, the technological upgradation of court facilities has been caused by the activeinvolvement of the High Courts Karnataka is a notable case. The Judges of various High Courtsare, in turn, constantly in touch through conferences - the recent Chief Justice's Conference inNew Delhi being a noteworthy example - under the supervision of the Chief Justice of India and

Judges of the Supreme Court. The level of understanding in particular subjects of law, and theimplications of political and international changes have to be constantly re-evaluated and updated - itis only then that meaningful justice can be delivered. I close this issue by also calling for ahappreciation of the varied backgrounds that the subordinate judiciary brings to the judicialestablishment. It is inevitable that Judges of the Supreme Court and the High Courts shouldcome from different locational backgrounds, but it is the subordinate judiciary which possesses truediversity, in terms of representation across urban-rural divides, communal divides, economicdivides, etc. This diversity forms the precious foundation of what constitutes justice at a givenpoint in time.


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In the course of this lecture, I have dwelt, on several occasions, with the qualities of the Indianjudiciary, and skeletal descriptions of the procedures that it follows for appointment andsupervision. It is obvious that I have consciously avoided a description of the exact nature of theseactivities. I did so for a reason, which is the next issue I plan to address here. There are compellingreasons for the judiciary to function publicly and transparently. The Indian people must find theirtrust and faith in the judiciary confirmed. It is their right to know the process in which they are

governed. However, there is also a need to prevent any possibility that these procedures are notcompromised. I will explain my point with an example - the process of appointment of judges tothe High Court and Supreme Courts. Besides the rules that have been laid down in the three Judgescases in the Supreme Court, which are obviously public knowledge, there are some proceduresthat are resorted to, in order to unfailingly establish the moral character required of a Judge. In theeven that these procedures, not only on a general level, but on a particular and day-to-day level, aremade public (which means that the public knows both that a particular person is beingconsidered for appointment, and also of the information that is revealed during the appointmentprocess about his antecedents), it is possible that frivolous public objections are made to theappointment of a completely competent candidate, and worse, that these appointmentprocedures are then compromised by interested parties. Such a possibility cannot even beentertained, for that could compromise justice at the highest levels, and that is the reason that a

certain amount of secrecy is still necessary while going through the process of appointment.

India follows a system of certainty of judicial tenure, unlike other jurisdictions, such as theUnited States. Once again, this is a conscious choice, although it was made by our constitutionalforefathers and not through lengthy debates in the courtroom, and it has its consequences. It is notnecessarily a balance between autonomy and accountability. The judge must be conscious that hispower arises by virtue of his position, and must accordingly adhere to the strict standard ofdiscipline and duty that it requires. He/she is always accountable, though not to a particular person,but to his brethren, and to the Indian people in general, for they have reposed their trust inhim/her. The system of removal and impeachment, though strenuous, places the politicalestablishment in a position to check the misuse of power as well.

The last issue I seek to deal with at this juncture is that of performance standards and a code ofconduct. One seeks to deal with competence, and the other with morals. There is no doubt that ajudge must be both moral and competent, and it is only those of that ilk who possess the capacity tooccupy the august position. Therefore, the issue at hand is whether there should be a prescribed setof written rules, which form detailed components of these qualities. I agree that there should besome sort of functional structure of strictures, because the misuse of power cannot be entirely ruledout. However, care has to be taken to see that this does not become a hindrance to the judicialprocess, and that political factors are not allowed to play a part. Moreover, the appointment processhas to be marshalled and consolidated to completely prevent the occurrences of misuse of power.

A judge should possess legal expertise, presence of mind, patience, the skills of communication andcourt craft and above all, a sense of justice. As is evident, most of these cannot be stipulated ormeasured - therefore, prudence has to be exercised while preparing any checklist of essential judicialqualities.

I conclude this lecture by re-affirming the responsibility of the Indian judiciary to the people of India,and to stand by the constitutional tenets of justice, liberty, equality, and fraternity while fulfilling the sacredduties cast on them. Judicial independence is a goal that cannot be jeopardized in any manner or to anyextent, for that will be the beginning of the destruction of democracy. The judge is not free to decide;he is free from encumbrances in his decisions - it is essential that he decides, and decides fairly. I thank the


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Chief Justice of Pakistan and my brethren from the judiciary for their presence here, the organizers ofthis Colloquium for this opportunity to speak on a subject I hold dearly, and also my patientlisteners.

cjikirpal changes 27oct03

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