In the scheme of a constitutional democracy, Judiciary is envisioned as a watchdog entrusted with ensuring the observance of rule of law. It embodies the assurance that when the State recedes into arbitrariness or slips towards authoritarian excess, it shall be there to correct them; to proclaim that the aeon of ‘Lex, Rex’ shall remain steadfast. The judiciary is, thus, the final hope on which the superstructure of rule of law rests. It is normatively expected to be independent and impartial, consistent and predictable, disciplined in its institutional functioning and in its constitutional oversight. Any substantial departure from these behavioral expectations, and the hope starts to fade; the superstructure of rule of law begins to shake.
The erosion of constitutional hope
When Umar Khalid remarks, "now this is my life," upon the rejection of bail after more than five years of incarceration pending trial in the 2020 Delhi riots case, contrary to established bail jurisprudence, it reflects precisely that fading of constitutional hope. Among the vast amount of literature critiquing this order, there is one simple question that stares us in the face. Do speeches opposing certain legislation of the government and exhorting chakka jam as a form of resistance really constitute a 'terrorist act'? Would such a conclusion not overturn entire criminal jurisprudence on its head? Let this be briefly elucidated.
If such reasoning were to be taken to its logical conclusion, would it not necessitate reconfiguring the contours of criminal law so that any conduct more serious than a chakka jam, or than an even broader swathe of 'any other means,' could fall within the ambit of terrorism? Such an interpretive trajectory risks expanding the definition of terrorism far beyond its doctrinal purpose, thereby approximating a legal regime akin to a police state rather than principled constitutional governance.
Similarly, when the accused persons in the Bhima Koregaon case are denied bail for prolonged periods on what have been credibly alleged to be fabricated or highly questionable charges, is it not precisely these cases where the judiciary has to be particularly vigilant against State arbitrariness and executive excess? In the present instance, there was no allegation of an overt act committed by the accused, no demonstrated resort to violence, and the ensuing disturbance itself was of a nature and scale far removed from anything that could credibly be said to threaten the unity, integrity, security, or sovereignty of the nation. Let alone the learned courts of justice, could any reasonable person plausibly infer such an existential national threat from the facts at hand?
One may reach this conclusion if the violence of such scale and nature were to occur in a small or micro state such as the Vatican City or a similarly sized polity, but India is a vast and complex nation of nearly 1.5 billion people, with robust institutional capacities and among the world's strongest armed and paramilitary establishments. To characterise relatively contained incidents of violence or unrest as threats to national unity or sovereignty in such a context arguably stretches the doctrinal and constitutional meaning of national security beyond limits that belies any semblance of logic.
What aggravates the consequences of such an inference is that it risks precipitating a breakdown of democratic communication. In a constitutional democracy, dialogue (including robust dissent) serves as the primary mode of resolving disagreement and replacing coercive force with deliberation. When dissent is systematically discouraged or criminalised, the very mechanism through which social conflicts are ventilated and resolved disappears. The likely consequence is a descent either into recurring cycles of unrest and violent disturbance, or into authoritarian governance, or indeed, a troubling combination of both. It is precisely the reason the judiciary must stand guard against the chilling of dissent, for the protection of dissent is inseparable from the preservation of democratic legitimacy and the rule of law.
Patterns of inconsistency in the Supreme Court’s jurisprudence
There are several other instances of significance where the judicial decision making has been glaringly inconsistent or has employed indefensible rationale. A notable example is Subhash Desai v. Principal Secretary, Governor of Maharashtra (2023). In that case, the Supreme Court categorically said that "the Governor can only order a floor test requiring a Chief Minister to prove their majority based on some objective material which indicated that the Chief Minister had lost the confidence of the legislature," and found that "there was no such objective material present," and that the Governor's action was therefore "not in accordance with the law." But overlooking the circumstances under which Mr. Uddhav Thackeray resigned, the Apex Court relied on procedural niceties to deny reinstatement of Mr. Thackeray since he had “voluntarily” resigned.
This reasoning invites critical reflection. Had Mr. Thackeray faced the floor test and lost due to defections that were precipitated by constitutionally questionable circumstances, was it not probable that the Governor would have cited this very loss as indicating the presence of “objective material” to show that Mr. Thackeray had lost the confidence; and would the Court then not have been constrained to affirm that conclusion? More fundamentally, if the acknowledged illegality of the Governor's action and the alleged defection triggered a sequence of political events leading to resignation, is it beyond the powers of the Supreme Court, particularly under Article 142, to remedy what it itself recognised as a manifest constitutional wrong with profound implications for democratic governance?
In a constitutional democracy, dialogue (including robust dissent) serves as the primary mode of resolving disagreement and replacing coercive force with deliberation. When dissent is systematically discouraged or criminalised, the very mechanism through which social conflicts are ventilated and resolved disappears.
Yet, there are instances in which the Supreme Court, while exercising its powers under Article 142, has reached conclusions that appear to depart from, or even contradict, the very premises it had itself articulated. In M Siddiq v. Mahant Suresh Das (2019), the Babri Masjid judgment, the Apex Court affirmed that "Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims." And yet, through manifest casuistry, it found that the “evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stood on a better footing than the evidence adduced by the Muslims.”
Further, the Court recognized its constitutional responsibility under Article 142 to ensure that "a wrong committed must be remedied" and expressly stated that restitution was "necessary to provide redress to the Muslim community for the unlawful destruction of their place of worship." Yet the final outcome awarded the entire site of the "desecrated" and "destroyed" mosque, along with the outer courtyard, to the Hindu parties. The internal tension in the judgment becomes most apparent when the Court reasons that "dividing the land will not subserve the interest of either of the parties nor secure a lasting sense of peace and tranquility."
The implicit consequence of this reasoning is that for the sake of securing a sense of peace and tranquility, the community acknowledged as having suffered dispossession and unlawful destruction is nevertheless deprived of the restoration of its original site of worship. The judgment showed how the judiciary, when confronted with deeply sensitive political and social conflicts, may arrive at outcomes that attempt to accommodate prevailing majoritarian pressures, potentially at the expense of constitutional justice.
In such moments, the citizen's faith in the judiciary as the final guardian of liberty is shaken, and the normative architecture of the rule of law begins to crumble. After all, what is the function of a bulwark, if not to guard against the crashing waters? And where should the citizens take shelter when the bulwark itself fails them! Is it not axiomatic in a constitutional democracy that, if the judiciary must err, it ought to err on the side of liberty and in favour of the citizen?
More importantly, such inconsistencies in judicial decision-making give rise to serious concerns regarding judicial indiscipline and underscore the need for a robust institutional framework in which judicial independence operates in a state of dynamic equilibrium with accountability. Such a framework does not merely preserve the authenticity of judicial independence; it ensures that accountability mechanisms continuously orient the judiciary towards its constitutional mission of safeguarding human dignity, equality, and fundamental rights. It is no surprise that in Constituent Assembly debates the persistent concern for judicial independence was discussed along with judicial integrity, impartiality and public interest.
In this regard, the Venice Commission’s Report on the Independence of the Judicial System (2010) underscores that institutional design must secure independence while ensuring systems produce judges of integrity and competence. It stresses that good institutional rules fail without accountability in implementation. Complementing this, the Kyiv Recommendations (2010) had expressly warned that concentration of governance functions in a single judicial body breeds corporatism. They recommend separating competences across distinct independent institutions for selection, promotion, budgeting, training, discipline, and evaluation.
The structural vulnerabilities of the Collegium system
Beginning with the Second Judges case (1993) and its reaffirmation thereafter, India shifted primacy in judicial appointments to the judiciary through the Collegium system. This protected courts from executive interference but also created a closed appointment system, characterized by opacity, lack of criteria, and absence of structured evaluation. These are concerns explicitly acknowledged by the Court even while striking down the NJAC in its 2025 judgement.
The Supreme Court's invalidation of the Constitution (Ninety-Ninth) Amendment Act, 2014 rested on the conclusion that executive participation in judicial appointments would compromise the basic-structure guarantee of judicial independence. Yet, even as the Court restored the Collegium, it candidly conceded deficiencies in its functioning. The post-NJAC constitutional phase, therefore, preserved judicial exclusivity in appointments without substantively addressing the underlying accountability concerns.
Moreover, even in the absence of direct executive control over appointments, political influence has continued to manifest through other institutional vulnerabilities such as selective listing of matters, strategic constitution of benches, judicial transfers without transparent criteria, an overwhelming State presence as a litigant shaping judicial environments, and executive leverage through administrative and infrastructural control over courts. These systemic frailties resonate closely with the Warsaw Recommendations' caution that judicial independence, if left unguided by accountability structures, risks producing dysfunction within judicial self-governance itself.
The post-NJAC constitutional phase, therefore, preserved judicial exclusivity in appointments without substantively addressing the underlying accountability concerns.
International standards for judicial self-governance
Consistent with this trajectory, the Recommendations on Judicial Independence and Accountability (Warsaw Recommendations), 2023 affirm that judicial self-governance bodies must themselves conform to the following institutional attributes:
(i) Pluralistic composition: a small majority of judges elected by peers, alongside independent non-judicial members from Bar, academia, and civil society; excluding executive and legislature participation in independence-affecting matters;
(ii) Transparency culture: publication of decisions, resources disclosure, annual reports, and engagement with civil society and media to maintain legitimacy; and
(iii) Independent disciplinary frameworks: bodies free from executive influence, primarily judicial but not exclusively so, with reasoned outcomes and judicial review.
Buttressing the above, the Joint Opinion of the Venice Commission and DGI of the Council of Europe on France (2023) reinforces three core propositions:
(i) Judicial councils must be independent of the executive and legislature, but cannot be monopolized by judges;
(ii) Pluralistic composition with integrity screening ensures legitimacy while preventing corporatist entrenchment, aligning with Warsaw integrity standards; and
(iii) Transparent selection and disciplinary mechanisms must exist with reasoned decisions and reviewability, again aligning with Warsaw provisions on justified selections.
Together, these standards articulate a constitutional vision in which judicial independence is not understood as insulation from scrutiny, but as a principled autonomy embedded within a framework of structured accountability capable of reinforcing public trust and strengthening the rule of law.
Comparative constitutional experience reinforces the proposition that independence and accountability are not antithetical but mutually constitutive elements of a mature judicial governance framework.
Lessons from comparative jurisdictions
Comparative constitutional experience reinforces the proposition that independence and accountability are not antithetical but mutually constitutive elements of a mature judicial governance framework. Judicial self-governance bodies in France (Conseil Supérieur de la Magistrature) and in Italy (Consiglio Superiore della Magistratura) institutionalize judicial independence through pluralistic judicial councils that maintain judicial majorities, include non-judicial members, operate independently of political branches, issue reasoned decisions, and remain subject to public accountability frameworks. Spain constitutionally entrenches judicial council autonomy through the General Council of the Judiciary (Consejo General del Poder Judicial), an organ expressly designed to shield judicial careers, discipline, and administration from political opportunism.
In light of these shortcomings, and drawing upon comparative constitutional experience and established international standards, there emerges a compelling case for the establishment of a constitutionally entrenched Judicial Council of India. This institution should be independent by design and structured in accordance with the guiding principles articulated in the Warsaw Recommendations (2023).
Consistent with international best practices, India should consider entrusting distinct and independently functioning bodies (possibly as specialised sub-committees within such a Council) with clearly demarcated responsibilities relating to judicial selection and promotion, training and performance evaluation, and discipline and ethics regulation. This structural separation would prevent concentration of institutional power, mitigate risks of judicial corporatism, and ensure functional expertise.
Judicial appointments must rest on objective, publicly articulated criteria, supported by reasoned decisions, a confidential and integrity-assured justification process, and meaningful avenues of judicial review. Likewise, disciplinary mechanisms should be fully insulated from executive influence, operate under mixed but judicial-led compositions, and be governed by clearly defined standards of judicial misconduct, robust procedural guarantees, transparent and reasoned determinations, and reviewability by an independent judicial authority.
Equally essential is the cultivation of a broader culture of accountability. Judicial governance bodies must engage in systematic public reporting, disclosure of institutional resources, and structured interaction with civil society to maintain legitimacy and public trust. However, any accountability framework must remain faithful to a foundational constitutional boundary, as also cautioned by the Warsaw Recommendations, that judicial councils must refrain from commenting on individual judicial performance or pending cases. The objective is not to subordinate judicial function to oversight, but to ensure that independence is exercised within a principled, transparent, and democratically legitimate institutional architecture.
Judicial independence remains constitutionally foundational in India. Yet independence divorced from accountability risks opacity, corporatism, and erosion of public trust. The experiences reflected in the Venice Commission, Kyiv, Warsaw Recommendations, and comparative constitutional practice establish that institutionally structured accountability enhances rather than imperils judicial independence.
India's constitutional evolution has successfully insulated the judiciary from political capture. Its next stage must institutionalize accountability, not as political concession, but as a constitutional necessity to realize genuine judicial independence and strengthen the rule of law.