Former Supreme Court judge Justice Deepak Gupta has raised concerns over the state of the judiciary, saying that courts at all levels are moving towards majoritarianism and that the number of “black sheep” in the judiciary is increasing.
Writing on the occasion of India's 80th Independence Day, Gupta questioned how free citizens truly are and said that independence is not merely about freedom from foreign rule but about the ability to think, speak and express dissent without fear, Live Law reports.
Economic progress means little without equality and justice
Gupta said a country can claim to be independent only when citizens have the freedom to raise their voice, receive equal opportunities and are not discriminated against on the basis of caste or religion.
He said India has progressed significantly, with citizens living better lives, improved life expectancy and the economy moving towards becoming a trillion-dollar economy. However, he questioned the value of economic growth if a large section of citizens continues to live below the poverty line.
Having spent almost half a century in the legal profession, Gupta said he was focusing on the legal fraternity and the role of an independent judiciary in protecting democracy.
He said no country can claim to be independent without a fearless and independent judiciary. According to him, judges must have integrity, intellect and the courage to stand up for justice and act “without fear or favour”.
Courts must protect fundamental rights, says Gupta
Gupta said constitutional courts, including the Supreme Court and High Courts, are not only meant to settle disputes but also protect citizens' fundamental rights.
He recalled Justice H.R. Khanna's dissent in the ADM Jabalpur case, where he had held that even during an Emergency, citizens could not be deprived of their fundamental rights except according to the procedure established by law.
Gupta said the principle that “bail, not jail, is the rule” has been reversed in practice, with imprisonment becoming the norm. He pointed out that in a country where a person is presumed innocent until proven guilty, there are three undertrials for every convict.
He cited the case of Umar Khalid, who has been behind bars for more than six years without the trial beginning, and questioned whether his right to liberty and speedy trial had been protected.
“The process has become the punishment,” Gupta said, adding that people are being condemned by being labelled as anti-national and that courts have failed to protect the fundamental rights of such citizens.
Detentions, protests and the question of judicial accountability
Gupta referred to the detention of Sonam Wangchuk, saying that habeas corpus petitions must be decided at the earliest. He said the Supreme Court repeatedly adjourned the matter while asking the government to reconsider the detention.
He said that after the detention order was withdrawn, the Court termed the matter infructuous, but should have decided whether Wangchuk's detention was legal.
Gupta said democracy is based on majority rule, but majoritarianism, where opposing voices are ignored, is harmful to democracy. He alleged that courts across levels are moving towards majoritarianism.
Referring to the Ram Janmabhoomi case, Gupta said the Supreme Court had held that no other disputes relating to places of worship would be reopened. However, he questioned the later decision in the Gyanvapi mosque case, where an Archaeological Survey of India inquiry was allowed to examine whether a temple existed at the site where a mosque stands.
He said the decision had opened the floodgates of litigation and would affect harmony between communities.
Gupta also referred to two separate incidents involving consumption of food and alcohol on the Ganga, alleging that members of one community were denied bail for months after consuming chicken on a boat, while members of the majority community were granted bail within hours after consuming liquor on the same river.
Representation in judiciary remains a concern
Gupta questioned the lack of diversity in recent appointments to the Supreme Court and High Courts, saying almost all newly appointed judges belonged to upper castes, with a majority being Brahmins.
He said there was no shortage of talent among other communities and religions and pointed out that several senior High Court judges from diverse backgrounds had impeccable integrity and capability.
Gupta clarified that he was not questioning the individuals appointed but said the Supreme Court must represent all sections of society if it is to truly be the Supreme Court of the country.
He said the root of the problem lies in the appointment process of judges. According to him, the collegium system has failed as it remains opaque and takes important decisions without providing reasons.
Faith in judiciary declining, says former judge
Gupta said people have placed great faith and trust in the judiciary despite the high cost and long delays involved in getting disputes resolved. However, he warned that this trust is declining.
He said judges today face constant scrutiny on social media but added that people still have greater confidence in the judiciary than in the legislature or executive.
Gupta also criticised the legal profession, saying an independent judiciary is possible only with an independent Bar.
He said lawyers must rise above political affiliations and personal identities and fight for citizens while standing up to power. He noted that while legal fees have increased sharply, pro bono work has declined.
Bar Councils must act against violations, says Gupta
Gupta criticised the functioning of Bar Councils, saying their primary responsibilities are to take disciplinary action against erring lawyers and maintain the quality of legal education.
He said these responsibilities have not been fulfilled, with poor standards in several law colleges and little action against lawyers who violate legal ethics and damage the profession.
Gupta said the right to liberty under Article 21 of the Constitution is one of the most important human rights, but it is being violated with impunity while courts often remain silent spectators.
“This is not the justice, the liberty, the equality, or the fraternity enshrined in the Preamble to our Constitution,” he said.
Dissent is the foundation of democracy, says Gupta
Gupta said dissent and the right to express views freely are not only fundamental rights but also essential parts of democracy.
He acknowledged that protests may inconvenience some members of the public but said no protest can be effective without causing some inconvenience.
Questioning judicial observations on restricting protests, he asked whether judges making such suggestions would protect citizens' right to dissent.
Gupta said most judges are men and women of integrity, but the number of “black sheep” in the judiciary is increasing. He called upon judges at the highest level to introspect and take steps to restore the judiciary's lost credibility.
He warned that if people lose faith in the judiciary, the institution itself will become irrelevant, threatening democracy.
“In a democracy, dissent is an act of faith,” Gupta quoted J. William Fulbright as saying.
