A former Supreme Court judge has raised an unusually sincere alarm about the state of India’s judiciary. Justice Deepak Gupta, who retired from the Supreme Court in 2020, has warned that although the overwhelming majority of judges remain people of integrity, the number of ‘black sheep’ in the judiciary is increasing. More seriously, he has argued that courts at different levels are showing signs of moving towards majoritarianism, while constitutional guarantees of liberty and dissent are not receiving the protection they deserve.
Writing in The Tribune on Sep. 7 in an article titled “The True Meaning of Freedom”, Justice Gupta linked the health of the judiciary directly to the meaning of independence itself. His central argument is that political independence from colonial rule means little if citizens cannot think, speak, dissent and seek justice without fear.
His intervention deserves attention not because it represents a judicial ruling – it does not – but because it is the considered public assessment of a former member of the Supreme Court who spent almost five decades in the legal profession.
Freedom beyond Independence Day
Justice Gupta began with a deceptively simple question: how free are India’s citizens?For him, freedom cannot be reduced to the absence of foreign rule. True independence requires citizens to be able to express themselves without fear, dissent from the government, enjoy equality irrespective of caste or religion and have meaningful access to education, healthcare, employment and basic rights.
This conception of freedom places the Constitution at the centre of the debate.The Constitution does not merely establish institutions of government. It places limits on governmental power and guarantees fundamental rights to individuals. The judiciary, particularly the Supreme Court and High Courts, has the responsibility of protecting those rights.That is why judicial independence is not an issue concerning judges and lawyers alone. It concerns every citizen.
Justice Gupta argues that a country cannot claim to be genuinely free without an independent and fearless judiciary – one whose judges possess not merely legal knowledge but also the courage to act ‘without fear or favour’.
Liberty and the Problem of Prolonged Imprisonment
One of the strongest portions of Gupta’s article concerns personal liberty.Article 21 of the Constitution protects life and personal liberty. Over the years, the Supreme Court has repeatedly emphasised that liberty cannot be taken away except according to a procedure established by law.
Yet, Gupta argues, there is a widening gap between constitutional principle and actual experience.He points to the large population of undertrial prisoners and invokes the familiar principle that bail should ordinarily be the rule and imprisonment the exception. He contends that, in practice, the reverse often appears to be happening.
His discussion of Umar Khalid is particularly pointed. Gupta notes that Khalid has remained in custody for more than six years without the trial beginning and asks what such prolonged incarceration means for the constitutional guarantees of liberty and speedy trial.The reference is significant because an undertrial is legally presumed innocent until convicted. Pre-trial detention is intended to serve specific purposes recognised by law; it is not supposed to become an informal substitute for punishment.
The same concern, according to Gupta, arises in the Elgar Parishad case, where several accused spent years in custody while the trial remained pending. He argues that when the prosecution considers allegations sufficiently serious to justify prolonged confinement, there should also be corresponding urgency in bringing the matter to trial.
His larger point is stark: when proceedings continue indefinitely, the process itself can become the punishment.This issue goes beyond any individual accused person. It raises a fundamental question about the criminal justice system: can constitutional liberty remain meaningful if years of a person’s life are consumed before guilt is judicially determined?
From Majority Rule to Majoritarianism
Perhaps the most politically sensitive aspect of Gupta’s intervention is his warning about majoritarianism. He makes a distinction between majority rule and majoritarianism.For Justice Gupta, majoritarianism begins when the voice of the other side is not heard. He argues that courts themselves appear, in his view, to be moving in this direction.
He cites the Ayodhya and Gyanvapi disputes as examples.The Supreme Court’s Ayodhya judgment had referred to the Places of Worship (Special Provisions) Act, 1991, and its legislative purpose of preserving the religious character of places of worship as they existed on August 15, 1947. Gupta argues that subsequent proceedings concerning Gyanvapi have nevertheless created the possibility of wider litigation over historical religious sites.
Justice Gupta’s interpretation of these judicial developments is that the courts have acted to appease a majority. His criticism therefore belongs to the domain of constitutional commentary and public debate.But the underlying question is undeniably important: shouldn’t the constitutional courts uphold the existing legal and constitutional obligations even when a section of the public sentiment demands otherwise?That is precisely where the judiciary’s role becomes most consequential.
Equality Before Law Must Be Visible
Gupta also refers to contrasting bail outcomes involving people from different communities who consumed food or alcohol on the Ganga. He presents these incidents as evidence of what he sees as unequal treatment.Justice under the Constitution cannot merely be equal in theory. Citizens must also be able to see and experience the equality of law.
If members of one community repeatedly believe that the law treats them differently from members of another community, public confidence in institutions inevitably suffers.The judiciary therefore has a responsibility not only to deliver legally sound decisions but also to ensure that its reasoning demonstrates impartiality.
The Judiciary and Dissent
Another theme running through Gupta’s article is the constitutional importance of dissent.A healthy democracy cannot be one in which citizens merely applaud those in power. Government policies can be criticised, challenged and opposed peacefully.Justice Gupta stresses that the government is not synonymous with the nation. Criticism of the government is not necessarily hostility towards the country.
This distinction is crucial in a democracy.The constitutional protection of speech and expression exists precisely because unpopular opinions require protection. Popular views rarely need institutional protection; unpopular citizens do.The judiciary therefore occupies a delicate position. It must protect public order and lawful restrictions while simultaneously ensuring that legitimate dissent is not criminalised merely because it is inconvenient to those in authority.
Gupta questions judicial observations that seek to restrict protests on the ground that demonstrations cause inconvenience. His argument is that some inconvenience is inherent in protest. A protest that causes no public attention or inconvenience may also have little capacity to communicate its message.This does not mean every form of protest is constitutionally protected. Peaceful assembly remains subject to lawful restrictions. But restrictions must be proportionate and legally justified.
The Collegium Question
Perhaps the most structural criticism in Gupta’s article concerns the collegium system of judicial appointments.He describes the system as opaque and argues that important decisions are taken without sufficient explanation. He further raises concerns about the social composition of the higher judiciary, arguing that recent appointments have disproportionately represented upper-caste sections.He does not accuse individual appointees of lacking integrity or ability. Rather, he argues that the Supreme Court, if it is to be regarded as the Supreme Court of the entire country, should reflect India’s social diversity.This raises a long-standing institutional question: How can judicial independence be reconciled with transparency and accountability in appointments?
The collegium emerged partly from the judiciary’s determination to protect judicial independence from excessive executive influence. Any reform must therefore avoid replacing one form of opacity with political control.At the same time, independence cannot mean complete insulation from legitimate questions about transparency, diversity and institutional accountability.
‘Black Sheep’: A Warning, Not an Indictment of All Judges
The most memorable phrase in Gupta’s article is his statement that the number of ‘black sheep’ in the judiciary is increasing.But Gupta explicitly acknowledges that the vast majority of judges are people of integrity.His concern is that even a relatively small number of judges whose conduct undermines public confidence can damage the credibility of the entire institution.
The judiciary possesses neither the army nor the police force nor the power of the purse. Its authority ultimately rests upon law and public confidence.Governments can survive criticism. Political parties can lose elections and return to power. But a judicial system cannot function effectively if citizens cease to believe that courts will hear them impartially. That is why the credibility of judges is an institutional asset.
The Real Test is the Unpopular Citizen
The judiciary is most necessary not when the powerful seek protection but when the unpopular citizen does. The popular have the support of numbers. The wealthy have resources. The government has the machinery of the State. The ordinary citizen has the Constitution.That is why Article 32, which enables citizens to approach the Supreme Court for enforcement of fundamental rights, occupies such a special place in India’s constitutional architecture.
If a court protects the rights of a citizen whom the majority dislikes, it is not favouring that citizen. It is enforcing the Constitution.The true test of judicial independence is therefore not how courts treat powerful litigants. It is how they respond when the individual standing before them has little political, social or economic power.
Restoring Trust
Justice Gupta’s concluding concern is perhaps the most important: public faith in the judiciary is weakening, and the institution must introspect.A mature constitutional democracy needs both judicial independence and legitimate public scrutiny.
The judiciary must be independent enough to resist political pressure, but transparent enough to explain its institutional processes. Judges must be protected from intimidation, but they must also remain conscious that their authority derives from the Constitution and public confidence.
And when courts make mistakes, there must be institutional mechanisms for correction.Justice Deepak Gupta’s article should therefore be read less as an attack on judges and more as a challenge to the institution.His warning that the number of ‘black sheep’ is increasing is ultimately a warning about trust.
A democracy does not die merely when elections disappear. It begins to weaken when citizens lose confidence that institutions will protect them impartially.If the courts lose their independence, their courage or their credibility, the loss will not belong to judges alone. It will belong to the citizen.
Can a nation remain truly free when its citizens are afraid to dissent, when liberty can be consumed by prolonged proceedings, and when faith in the institution meant to protect the Constitution begins to wane?
Justice Gupta’s answer is clear: freedom requires a fearless judiciary.The challenge now is for the institution to ensure that the warning does not become a prophecy.